CITATION: Dhir v. Malaviya, 2023 ONSC 4958

DIVISIONAL COURT FILE NO.: 22-62

DATE: 20230831

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Heeney, Stewart and Sutherland JJ.

BETWEEN:

Anu Dhir

Appellant

– and –

Sanjai “Sanjay” Malaviya

Respondent

Heather Hansen and Maureen Edwards, for the Appellant

Daryl Gelgoot and Vanessa Amyot, for the Respondent

HEARD by videoconference in Brampton: March 10, 2023

REASONS FOR DECISION

Stewart J.

Nature of the Appeal

Nature of the Appeal

1The Appellant Anu Dhir (“Dhir”) appeals the Order dated August 17, 2022 made by Stribopoulos J. which ordered the sale of the parties’ home at 1470 Watersedge Road, Mississauga (“Watersedge”) with a listing date to be chosen before the hearing date of a pending motion for summary judgment brought by the Respondent Sanjay Malaviya (“Malaviya”). The Order requires that the proceeds of any sale of Watersedge are to be held in trust pending resolution, determination of the dispute, or further order of the Court. Dhir requests that the Order be set aside.

2Malaviya submits that the Order should not be interfered with and this appeal be dismissed.

3For the reasons that follow, I agree that there is no basis for interfering with the Order and would therefore dismiss this appeal.

Background

Background

4The parties are not married to each other. They cohabited for approximately 18 years and separated in 2020.

5The parties have two children, ages 14 and 5, who reside with Dhir at her residence in Toronto and with Malaviya at a residence in Toronto he has purchased. Since separation, Malaviya has been paying the upkeep and expenses associated with Watersedge in a monthly amount close to $6000.00.

6Malaviya holds registered sole title to Watersedge. He submits that he was required to bring the motion seeking an order directing that the property be listed for sale because he no longer wished to pay the very high cost of maintaining a vacant property that he was not able to use and was no longer required for Dhir and their children to reside in.

7Dhir opposed the request for an order requiring a sale. Although neither she nor the children are residing at Watersedge, Dhir argues that it is in their best interest that it not be sold so they might be permitted to use it on occasional weekends to visit with family and friends in Mississauga.

8The motion judge concluded that Watersedge should be sold as requested. A listing agent was named and it was ordered that the best offer to purchase the property be accepted and that the full proceeds of sale be paid into court upon closing. Either party would be at liberty to offer to purchase the property if prepared to offer the best price.

9The decision of the motion judge was based on the factors for consideration as set out in the applicable authorities including Dhaliwal v. Dhaliwal, 2020 ONSC 3971, and on findings that included the following:

(a) Watersedge is not the principal residence of either party or their children;

(b) Access to Watersedge was not essential to the maintenance by the children of their relationships with family and friends in Mississauga;

(c) It is reasonable for Malaviya to seek to relieve himself of the obligation to spend nearly $6000 per month maintaining a property he does not use and the children do not reside in;

(d) There was no evidentiary basis to conclude that the children would suffer a negative impact as a result of the proposed sale. In particular, they would not be uprooted from their family home;

(e) Although Dhir maintains that she has a contractual right to purchase Watersedge in accordance with the terms of a Cohabitation Agreement between the parties (which she, somewhat contradictorily, seeks to set aside in these proceedings) she had not accepted or pursued Malaviya’s offer to sell his interest in Watersedge to her for a purchase price equal to one-half of its appraised value;

(f) Dhir’s loss of the ability to be in a possible position to purchase Watersedge, depending on the outcome of her financial claims at trial, is not the sort of prejudice that is of a magnitude that would justify refusing an order for its sale in these circumstances.

Jurisdiction

10Section 19(1) of the Courts of Justice Act (“CJA”), RSO 1990, c C.43 provides that an appeal lies to the Divisional Court from a final order of a judge of the Family Court made under a provision of an Act or Regulation of Ontario. Section 7 of the Partition Act, RSO 1990, c P.4 provides that an appeal lies to the Divisional Court from any order made under it.

Standard of Review

Standard of Review

11The parties agree that the appellate standard of review applies to this appeal. Where an error can be attributed to the application of an incorrect legal principle, the standard of review is that of correctness. Questions of fact or of mixed fact and law cannot be disturbed unless a palpable or overriding error can be demonstrated (see: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235).

Law and Discussion

Law and Discussion

12Dhir submits that the motion judge erred in failing to properly consider the prejudice to her rights under the Cohabitation Agreement which provides her with the option to purchase Malaviya’s interest in Watersedge. Despite the fact that she also takes the position that the Cohabitation Agreement is unenforceable, Dhir submits that the validity of the Cohabitation Agreement is an issue that should be determined before any motion to sell Watersedge is heard or any order for its sale is made.

13Dhir also suggests that the motion judge misapprended the evidence when he found that Malaviya had offered to sell his interest in Watersedge to the Appellant for half the property’s appraised value, that she had declined such offer and had proceeded instead to purchase a property in Toronto. Dhir submits that Malaviya had not offered to sell his interest in Watersedge to her but had offered only to buy out her interest.

14Malaviya points out that Dhir did not seek to exercise any right pursuant to the Cohabitation Agreement that she now seeks to set aside. Rather, Dhir made it clear to him that she had no intention of accepting his proposal to buy or of making any counter-offer to purchase his interest in the Watersedge property on the same or a different basis.

15Malaviya therefore submits that if the motion judge did make any error of fact regarding whether he had offered to sell his half interest in Watersedge to Dhir, such error is not of such a significance as to justify setting aside the Order. I agree.

16Malaviya also submits that the motion judge was not required to wait for a determination of the validity of the Cohabitation Agreement because (a) Dhir’s claims of prejudice are prefaced on adherence to a contract that she seeks to set aside, (b) he offered to sell his interest in Watersedge to Dhir for half its appraised value, an offer that was rejected, and (c) Dhir’s desire to await the outcome of the litigation in the event she might ultimately have the resources to purchase the property does not amount to sufficient prejudice to justify denying its sale. In doing so, the motion judge was alive to and applied the factors to be considered when faced with such an issue.

17I agree with Malaviya’s position in that same regard. Indeed, Malaviya would be the party suffering prejudice if a sale were refused as he would be required to continue paying significant maintenance expenses for an essentially unused property. To the extent Dhir claims financial relief in these proceedings, it is trite to observe that any unnecessary expenditures, including those made by parties of significant means, may have a negative impact on both parties as well as their children.

18In this case, the liquidation of the value of Watersedge by a sale is balanced by the condition that payment of the full proceeds of such sale into court be required to await final disposition of the entire dispute. The principal dispute between the parties insofar as it may engage Watersedge is a financial one, described by the motion judge as being a claim by Dhir for equitable relief for contributions she asserts she made to Malaviya’s business interests. The Order does not operate to disadvantage either party in pursuing a determination of this or any other financial issue.

19Accordingly, I do not perceive any basis upon which this Court might be justified in disturbing the Order of the motion judge.

Conclusion

Conclusion

20For these reasons, this appeal is dismissed.

Costs

Costs

21The parties have agreed that costs of this appeal in the all-inclusive amount of $15,000.00 shall go to the successful party and be payable by the unsuccessful party. Costs in that amount are therefore awarded to Malaviya and to be paid by Dhir.

Stewart J.

I agree _______________________________

Heeney J.

I agree _______________________________

Sutherland J.

Released: August 31, 2023

CITATION: Dhir v. Malaviya, 2023 ONSC 4958

DIVISIONAL COURT FILE NO.: 22-62

DATE: 20230831

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Heeney, Stewart and Sutherland JJ.

BETWEEN:

Anu Dhir

Appellant

– and –

Sanjai “Sanjay” Malaviya

Respondent