DIVISIONAL COURT FILE NO.: DC-24-00000311-0000
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Richard Brohman, Appellant
AND:
Catherine Brohman, Respondent
BEFORE: Leitch, Faieta, and Shore JJ.
COUNSEL: Gabrielle Nadeau, for the Appellant
Susan McGrath, for the Respondent
HEARD at Toronto: March 13, 2025
REASONS FOR DECISION
1This is an appeal of the decision of Justice Cornell, dated May 17, 2024, for the partition and sale of the jointly owned matrimonial home.
2For the reasons below, the appeal is dismissed without costs.
Background:
3The parties were married on May 26, 2001, and have been separated since April 27, 2011. The Application was issued in July 2012, and for reasons that this Court cannot understand, the parties have not resolved the outstanding issues arising from their separation nor has the matter been scheduled for trial.
4During the marriage, the parties purchased the matrimonial home, municipally known as 3 Nursery Road, Moonbeam, Ontario. Title to the home is registered in joint names.
5The Appellant has resided in the matrimonial home since separation. He has been paying all the expenses on the matrimonial home.
6The Respondent moved out of the matrimonial home following separation and has since purchased alternate accommodations.
7The parties' primary asset at separation was their interest in the matrimonial home.
8The parties do not agree on the equalization payment owing between them.
9The Appellant has made a claim for exclusive possession of the matrimonial home and a vesting order. He has expressed a desire to purchase the Respondent's interest in the matrimonial home.
Standard of Review:
10An appeal from any order made under the Partition Act, R.S.O. 1990, c. P.4, lies to the Divisional Court: see s. 7.
11The Supreme Court in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 outlined the appellate standards of review.
12The standard of review on appeal for questions of law is correctness.
13The standard of review on appeal for questions of fact is palpable and overriding error.
14The standard of review on appeal for questions of mixed fact and law where there is an extricable legal principle is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.
Analysis:
15The Appellant submits that the motion judge erred in ordering the sale of the matrimonial home pending trial and failed to consider the principles set out in case law. The Appellant submits that the home should not be sold pending determination of the equalization payment owing between the parties. The Appellant wants to remain in the home and purchase the Respondent's interest therein. The Appellant submits that the sale of the home will prejudice these rights.
16Under s. 2 of the Partition Act, a joint owner of a matrimonial home has a prima facie right to partition and sale. The onus is on the party opposing the sale to establish why the sale should not be ordered, which may include a real prejudice to the other party's rights under the Family Law Act, R.S.O. 1990, c. F.3, or if the application for the sale was brought with malicious, vexatious or oppressive intent: for example, see Latcham v. Latcham, 2002 44960 (Ont. C.A.). The motions judge correctly identified the law in this area during the motion.
17The Appellant refers to Martin v. Martin (1992), 1992 7402 (ON CA), 8 O.R. (3d) 41 (C.A.), for the proposition that an order for the sale of a matrimonial home made before resolution of the Family Law Act issues should not be made as a matter of course. Martin was about whether the court can make an order for the right of first refusal on the sale of a property and whether an order for the sale of the home can be made under s. 10 of the Family Law Act, instead of the Partition Act. The comment that the Appellant relies on was made in obiter. The Court of Appeal confirms that the court should not make an order for the right of first refusal. The Appellant can bid for the house in the open market. The sale of the home does not prejudice this right.
18The Appellant also relies on the Court of Appeal decision in Silva v. Silva (1990), 1990 6718 (ON CA), 1 O.R. (3d) 436 (C.A.), for the proposition that an application under the Partition Act should be deferred where it would prejudice the substantial rights of either spouse. In Silva, the Court of Appeal upheld the lower court's decision to order the partition and sale of the home. The husband opposed the sale of the jointly owned matrimonial home because he wanted to bid on the home once it was up for sale and could not do so if the equalization of net family property had not been resolved, as in this case. The court stated, “I can think of no reason why the husband should hold the house hostage until his claim has been adjudicated”. The husband's concern about collecting any equalization payment owing to him or his claim for an unequal division did not amount to prejudice within the meaning of the case law: Silva, at pp. 445-446.
19The facts in Silva closely resemble the facts of this case. The Appellant failed to show that any prejudice would occur if the home was sold. A sale prior to trial would not prejudice his claims regarding the equalization of or unequal division of net family property. He has not claimed that there is any hidden agenda or purpose connected to the request for the sale of the property and certainly none that would amount to malicious, vexatious, or oppressive conduct by the Respondent.
20For the reasons above, I see no error in law in the motions judge's decision to order the partition and sale of the matrimonial home. The Appellant has not shown any palpable of overriding error in the findings of fact.
21This case has been ongoing since the Application was issued in 2012. There is no indication that it will be moving towards resolution any time soon. Their last settlement conference was in September 2023. Perhaps the sale of the home will encourage both parties to finally take steps to move this matter to resolution or schedule it for trial.
Costs:
22In the absence of a costs outline from either party there shall be no order as to costs.
Disposition:
23Appeal dismissed without costs.
“Shore J.”
I agree “Leitch J.”
I agree “Faieta J.”
Date: March 28, 2025