CITATION: Maghnam v. Maghnam 2026 ONSC 4651
DIVISIONAL COURT FILE NO.: DC-26-3174 DATE: 2026/08/11
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
BASEL MAGHNAM
Applicant
(Respondent in appeal)
– and –
STEPHANIE MAGHNAM
Respondent
(Appellant in appeal)
David Howard, for the Applicant (Respondent in Appeal)
Self-represented appellant with the assistance of Adrienne Lafrance
HEARD at Ottawa by Zoom: June 12, 2026
ENDORSEMENT
Labrosse J.
Overview
[1] The moving party, Stephanie Maghnam (the “Appellant”), seeks a stay pending appeal of the order of Audet J. dated April 9, 2026. That order required the Appellant to vacate the matrimonial home, granted Basel Maghnam (the “Respondent”) exclusive possession for the purpose of preparing the property for sale, authorized the listing and sale of the property, and directed that the home remain vacant pending sale.
[2] The issue before this court is not solely the merits of the appeal itself, nor the ultimate determination of the parties’ competing property claims. The issue is whether the Appellant has established that a stay pending appeal should be granted.
[3] For the reasons that follow, the motion is dismissed but the order dealing with the sale of the matrimonial home is amended.
Background
[4] The matrimonial home is the principal asset in the family law dispute between the parties. The Respondent is the sole registered owner of the matrimonial home. The Appellant nevertheless asserts various claims relating to the property, including claims founded upon constructive trust, unjust enrichment, unequal division, possessory rights, and an alleged Mahr-related entitlement. The Respondent disputes those claims.
[5] The Appellant submits that she made substantial contributions to the construction, maintenance and preservation of the property. The Respondent disputes both the extent and legal significance of those alleged contributions.
[6] The Appellant further relies upon medical evidence relating to Type 1 diabetes, neuropathy, mobility limitations and the suitability of the home for her circumstances. She submits that the property contains accessibility features and accommodations that would be difficult to replace but provides no corroborating evidence. The Respondent maintains that the medical evidence before the motion judge was limited and insufficient to establish an ongoing need to remain in the home.
[7] The Respondent emphasizes that he is the sole owner of the property, that the Appellant failed to produce documentary support for certain claims despite prior disclosure obligations, and that he continues to experience significant financial strain while supporting two children living with him. He further notes that the proceeds of sale are to be preserved pending further determination of the parties’ rights.
[8] On April 9, 2026, Justice Audet ordered, among other things, that:
a. The Appellant vacate the matrimonial home within 30 days;
b. The matrimonial home be listed for sale as soon as possible after May 8, 2026;
c. The Respondent has exclusive possession from May 8, 2026, for the purpose of preparing and listing the home for sale; and
d. The matrimonial home remains vacant until sold.
[9] The motion judge found that the Respondent’s request for immediate sale was “effectively” one for summary judgment because the Appellant sought exclusive possession and a vesting order. The motion judge then found that the Appellant’s claims for exclusive possession and vesting relief did not raise a triable issue.
[10] The order was made in the context of the then upcoming trial scheduled for May 2026. The motion judge was aware of the unresolved claims concerning possession, ownership, constructive trust, unjust enrichment, equalization, and mahr-related relief.
[11] With respect to the Mahr-related relief, there is no such claim in the Appellant’s pleadings. It is acknowledged that a Mahr was signed by the parties and it is dated March 22, 2007. The Appellant contends there is part of the Mahr certificate that requires him to transfer title to the matrimonial home to the Appellant. The Respondent disputes this. The certificate was not translated into English by either party. The Appellant now claims that the Mahr was agreed to orally at the wedding ceremony and that there is an obligation for the Respondent to transfer the matrimonial home to her. She presents an affidavit by her father to support that contention. The Respondent denies that he ever agreed to a Mahr requiring him to transfer title to the matrimonial home to the Appellant.
[12] The Appellant has filed medical evidence to support her need to remain in the matrimonial home pending the trial of this matter. At the motion, she relied upon her family physician’s medical letter opining that it would be beneficial for the Appellant to remain in the matrimonial home. For the purposes of this motion for a stay pending appeal, she has filed a new medical report dated April 30, 2026, that goes into more detail about her medical conditions and how the matrimonial home is uniquely modified to support the Appellant’s physical and mental health.
[13] The medical evidence provided for this motion highlights that the Appellant’s physical and mental health conditions significantly affect her ability to manage stress, her cognitive functioning and her capacity to engage consistently in complex and demanding tasks. This evidence was not before the motion judge.
[14] The Respondent has also provided evidence of the impact of having to carry the expenses related to the matrimonial home and how it impacts on his ability to provide for the children, who reside with him on a full-time basis. He states that he is running a consistent monthly deficit caused in large part by the costs relating to the matrimonial home.
[15] The Appellant has now provided evidence that she has recently become employed as of April 13, 2026 and that she has the ability to cover the costs relating to the matrimonial home pending its sale. The wording of para. 26 of her affidavit is unclear when it comes to carrying costs. She states that the monthly mortgage payment is approximately $1,000 and the total carrying costs are approximately $2,500. It is unclear if that amount of $2,500 includes the mortgage or if the total amount including the mortgage is $3,500. Regardless, she states that she can cover the costs.
Applicable Law
[16] The parties agree that the applicable test for a stay pending appeal is the test described by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311.
[17] The moving party must establish:
a. a serious question to be determined on the appeal;
b. that irreparable harm will result if the stay is refused; and
c. that the balance of convenience favors granting the stay.
[18] These factors are not watertight compartments. The court must assess them together in determining whether it is just and equitable to suspend the operation of an order pending appellate review: see Ducharme v. Hudson, 2021 ONCA 151 at para. 11.
[19] The factors to be considered by a motion judge are generally designed to assess the prejudice to the parties if the order sought is granted or refused: see Ducharme at para. 12.
[20] At this stage, the court is not tasked with assessing the merits of the appeal. That decision is presumptively correct: Public Guardian and Trustee v. Zammit, 2021 ONCA 648 at para. 3.
Serious Issue to Be Determined
[21] The threshold at the first stage is generally low. An applicant need only demonstrate that the appeal is neither frivolous nor vexatious.
[22] The Appellant advances several proposed grounds of appeal. Among other things, she argues that the motion judge improperly treated the matter as akin to a summary judgment proceeding, prematurely determined contested issues relating to ownership and entitlement, failed to adequately consider her medical circumstances, and erred in dealing with her asserted equitable and mahr-related claims.
[23] The Respondent maintains that the appeal is weak because the Appellant failed to produce supporting documentation for key claims, because the Mahr claim lacks documentary foundation, and because the motion judge's conclusions were fully supported by the evidentiary record.
[24] It is neither necessary nor appropriate on this motion to determine the ultimate merits of those positions. However, they must still be considered in the context of an order for the sale of a matrimonial home solely owned by the spouse who is not in possession. These orders are routinely made.
[25] A spouse who is the sole owner of a matrimonial home is prima facie entitled to dispose of that property. However, the right is subject to the possessory and consent protections afforded to the other spouse by ss. 19, 21 and 23 of the Family Law Act.
[26] The process to obtain an order for the sale of a matrimonial home is also informed by the fact that an owner of property has a prima facie right to obtain an order for partition and sale except in exceptional circumstances such as conduct that is malicious, vexatious or oppressive: Latcham v. Latcham, 2002 CanLII 44960 (ON CA).
[27] While I inform myself once again that the threshold to determine if the appeal has merits is low, the court must still consider the substance behind the stated merits. In that vein, I find the merits raised by the appellant as being low for the following reasons:
a. That the motion judge treated the motion for sale as a summary judgment motion on the issues of exclusive possession and a vesting order. This is precisely how the motion judge was required to approach the motion for sale. She was aware that, by ordering the sale of the property, that she had to be certain that there were no issues surrounding exclusive possession or a vesting order that would warrant a trial. She therefore decided the motion on the higher standard applicable to motions for summary judgment.
b. That the Appellant was not advised that her claims related to exclusive possession and vesting relief were at issue. I fail to see how this argument has any merit. The Appellant was fully aware of the request to sell the property. Clearly, her claims to exclusive possession and a vesting order would be extinguished once the home is sold. There is no evidentiary basis to the suggestion that she was not properly on notice. The fact that the appellant did not have counsel is not a ground for an appeal.
c. That the Appellant was prejudiced by the need to move so close to trial and that she was prejudiced in her trial preparation. The motion judge was fully aware of the upcoming trial. She weighed that in her decision-making in the face of a record that suggested that the Appellant could not pay the ongoing costs of the home and the medical evidence provided was lacking. While planning a move with the upcoming trial was clearly a difficult situation, the motion judge’s decision clearly had the effect of simplifying certain issues in advance of trial. The stress faced by the Appellant during her trial preparation would have been obvious to the motion judge. I have doubts as to whether it amounts to a reviewable error.
d. That the Appellant failed to properly consider the issues under s. 24 of the Family Law Act. Once again, the motion judge made her decision based on the record before her. Even the Appellant’s updated medical information does not suggest that she is unable to move. Stressful situations are often found surrounding family law trials, and these are common. The motion judge’s decision demonstrates that she was fully aware of the Appellant’s position and her opposition to the sale of the home prior to trial.
e. The Mahr issue is still unresolved. Once again, the motion judge made her decision based on the evidence that was presented to her in respect of the Mahr. The Mahr issue was not properly pled. The new evidence of an apparent oral agreement at the wedding ceremony is subject to a motion for fresh evidence on the appeal. As presented on this appeal, there are questions surrounding the arguments relating to the oral Mahr that was not included in the written version. There is an absence of corroborating evidence, and the written Mahr agreement contradicts the Appellant’s father’s evidence. This argument has very little chance of success in the context of the evidence before me. Regardless, a financial compensation would always be available if the Appellant is successful on that issue at trial.
[28] In the end, I see very little merit in the issues raised on appeal in the face of the overwhelming case law surrounding the rights of an owner of a matrimonial home to proceed with its sale. With that said, the merits are weak but not non-existent. As the threshold here is low, I am unable to conclude that the appeal is frivolous or vexatious. However, as stated, the merits are low.
Irreparable Harm
[29] Irreparable harm refers to harm that cannot be quantified in monetary terms or cured at a later stage. It is the nature of the harm, and not its magnitude, that is determinative.
[30] The Appellant argues that the sale of the home would fundamentally alter the subject matter of the litigation. She submits that the sale could impair claims relating to possession, constructive trust, unjust enrichment and her alleged Mahr entitlement. She further argues that relocation would cause hardship because of her medical condition and would adversely affect her preparation for trial.
[31] These submissions are entitled to careful consideration. However, several aspects of the evidentiary record weigh against a finding of irreparable harm.
[32] I begin with the fact that the order under appeal does not terminate the Appellant’s asserted financial or equitable claims. The Respondent's position is that the net sale proceeds will be preserved in trust pending a final determination of entitlement. The Appellant’s alleged interests are therefore capable of attaching to an identifiable fund. It would have also been possible for the Appellant to access some of those funds pending trial, if the sale had proceeded.
[33] While the Appellant argues that a constructive trust claim is uniquely connected to the property itself, one must remember that the primary relief for a claim of unjust enrichment is monetary damage. If the Appellant ultimately succeeds in establishing an entitlement to compensation, equalization, unjust enrichment relief, or another monetary remedy, the proceeds of sale remain available for that purpose.
[34] In terms of the claim for the Mahr, the supporting evidence is lacking. The suggestion by the Appellant’s father that there was an oral Mahr entered into by the parties which would contradict the written document is questionable at best. Further, it may be unenforceable. There is significant doubt surrounding the Appellant’s claim that a property transfer was required as part of the Mahr and that this would now apply to a subsequent property. The Respondent has denied it and there is no corroborating evidence. In addition, the Appellant has not bothered to have the document translated. The court can place very little merit on the Mahr-related claims and, as such, this does not amount to irreparable harm when a financially reparation continues to be available.
[35] I am not persuaded on the present record that relocation itself would give rise to irreparable medical harm. The Appellant relies on evidence of diabetes, neuropathy and mobility concerns. The Respondent points out that the medical evidence before the motion judge was limited and that no persuasive evidence supports that suitable alternative accommodations are unavailable. Remaining in the home was identified as preferable in the medical report. Turning to the additional medical evidence provided for this motion, the evidence again falls short of stating that the Appellant cannot move for health reasons. She may require assistance with packing, and this may end up being a justifiable expense. The need to move will cause stress. The need to prepare for trial will cause stress. The cause of these two events having transpired at the same time is the result of the delay in dealing with this property as it should have.
[36] Further, the Appellant’s financial circumstances are unclear. What is her proposed budget on the salary that she now earns? The Appellant’s new employment is also subject to a motion for fresh evidence. It is highly doubtful that either party could maintain the costs and work related to this type of property on their own in the long term. This should have been dealt with long ago. It is simply not sustainable to leave the door open for the Appellant to live in an 8,500-square-foot property in the long term. The evidentiary record required to support such a result is clearly absent.
[37] The difficulties to be experienced by the Appellant during the sale and trial processes do not amount to irreparable harm. In addition, the process to move forward with the sale, list it for sale and provide time for a closing date will likely extend well beyond the trial.
[38] Turning to the appeal, the Appellant has an argument to advance that the sale of the property will render the appeal in large part moot. Once it is sold, the possession-related claims are lost. However, these are claims that do not present triable issues and the motion judge’s analysis in this regard is sound. This was a consequence that was fully considered by the motion judge who determined that there were no triable issues requiring a trial with respect to exclusive possession and the claim for a vesting order.
[39] The main arguments advanced by the Appellant relate to the motion judge’s assessment of the evidence. While the evidence has now changed on this motion, it remains that it is doubtful that the Appellant can afford to carry the cost of the matrimonial home on her new salary. Her net pay per two-week pay period appears to be $2,306.64. It is hard to imagine how she will be able to maintain the carrying costs. Even in her affidavit, she is willing to “pay or contribute to the carrying costs necessary to preserve the property.” This is not persuasive.
[40] I accept that relocation may be difficult, inconvenient, stressful and costly. However, such consequences do not constitute irreparable harm. The evidence before me falls short of demonstrating that the refusal of a stay will likely result in a medical consequence that cannot be addressed or compensated through other means. From a medical perspective, it may be preferable for the Appellant to remain in the matrimonial home and avoid the immediate stress of a move. However, in the overall scheme of the file, based on the evidence provided, there is no realistic scenario that would allow either party to keep this home in the long term. It is an 8,500-square-foot home with significant carrying costs. The home is much too large for either of the parties to reside alone, with or without the children. Reasonably, it is not a question of whether the home will be sold, the sole question is when.
[41] Finally, the Appellant's concern that trial preparation will become more difficult if she must move is understandable. Nevertheless, litigation-related inconvenience and disruption are habitual consequences of family law proceedings. On the record before me, those concerns remain largely speculative and do not rise to the level required by the second branch of the test. The litigation-related circumstances of moving during the time leading up to a trial is a situation created by the Respondent who did not address this situation in advance of the trial. Again, it is unfortunate, but it does not amount to irreparable harm.
[42] In summary, the Appellant has not demonstrated that the refusal of the stay will result in non-compensable harm. While there are elements of her appeal that will become moot, those possession-related elements do not raise a triable issue. The asserted prejudice is largely capable of monetary assessment or remedial adjustment if the appeal ultimately succeeds.
Balance of Convenience
[43] Even if I were wrong and that there was some irreparable harm, I would conclude that the balance of convenience favors the Respondent.
[44] The Appellant submits that maintaining the status quo is the most equitable course, particularly because the appeal challenges an order that will lead to the sale of the home. She argues that any prejudice to the Respondent is primarily financial and can be addressed through conditions.
[45] The Respondent, however, has provided evidence of ongoing financial hardship. According to his materials, he is carrying expenses associated with the matrimonial home while also maintaining separate accommodation, is operating at a significant monthly deficit, and bears primary responsibility for the support of two children living with him. He resides with those children in significantly more modest accommodations than the matrimonial home.
[46] While I appreciate that the Appellant has recently become employed, the carrying costs of the home are significant and I have significant doubts that the Appellant would be able to cover the carrying costs for the home for an extended period of time.
[47] The court must consider comparative prejudice. The Appellant remains able to pursue most of her claims at trial, regardless of whether the property is sold. It is plainly obvious that the home will be sold, the question is when. The Respondent, by contrast, continues to shoulder substantial financial obligations associated with a property from which he does not presently derive practical benefit. As stated, neither of the parties would retain a realistic practicality to residing in this property in the long term.
[48] The preservation of sale proceeds significantly mitigates the prejudice identified by the Appellant. At the same time, permitting the sale to proceed addresses the continuing financial burden described by the Respondent.
[49] I also note that the interests of the parties' children form part of the broader contextual analysis. The Respondent's evidence is that he remains solely responsible for their day-to-day needs while living in restricted accommodations. The Appellant has not been paying support.
[50] Considering all circumstances, including the limited merit to the appeal, the absence of irreparable harm and that the balance of convenience favors refusing the stay, I conclude that the motion for a stay should be denied.
Sale Process
[51] The order of Justice Audet calls for the Appellant to vacate the home pending its sale. Clearly, there was a valid reason to believe that the parties would be unable to cooperate and prepare the home for sale and maintain it in a condition that allows it to be available for showings. In addition, there was no evidence that the Appellant could maintain the carrying costs of the home, even in the short term and the medical evidence was lacking.
[52] As I consider the special nature of this property given its size and estimated value, it is clear that this home will not appeal to all residential purchasers. The class of buyer who would be interested in this type of property may well be limited. Further, it is to the benefit of both parties to have the property occupied during the listing process as it is well known that it is better to sell an occupied home rather than a vacant home. In addition, from an economic standpoint, it is better for the parties to have the Appellant in the home paying the ongoing carrying costs and not have to immediately move to a new property. I am also mindful that the motion judge did not have the evidence of the Appellant’s employment and the additional evidence surrounding her medical condition.
[53] It is for this reason that I have decided to give the parties a limited chance to cooperate through the sale process and demonstrate an ability to follow the recommendations of the listing agent and maintain the property in a sale-ready condition while the Appellant continues to reside in the property during the listing and the period that she is preparing for trial. At this time, it is unlikely that the sale of the property would close before trial. Regardless, the Appellant will have to maintain the property for sale despite that she is preparing for trial.
[54] If the parties are unable to reasonably work together toward the sale of the property, I will, without hesitation, order that vacant possession be obtained for the sale. Maintaining the home in a sale-ready condition will obviously be more onerous for the Appellant as she is currently residing in the property. This is a reality of allowing her to remain in the home pending its sale. I will case manage the sale process, and I can advise the parties that I will have very little tolerance for conduct that is unreasonable or that otherwise interferes with the sale process. In large part, the advice of the real estate agent should, in the normal course, be followed.
[55] This matter will therefore proceed to a Case Management Conference with Justice Labrosse. The parties will either provide a joint order dealing with the sale issues, failing which they will each provide their own order and Justice Labrosse will adjudicate the issues for the sale process after giving the parties an opportunity to be heard. The home must be listed for sale as soon as possible and the Appellant must keep in mind that the Respondent is the owner of the home when it comes to issues set out below.
[56] The parties should consider having their draft orders deal with the following issues which are not meant to be exhaustive:
i. The selection of an agent and the listing price;
ii. Presale steps to ready the property for being listed;
iii. Access to the property for the Respondent to determine sale needs and being able to assess the present condition;
iv. Ongoing maintenance obligations to maintain the property in a sale-ready condition;
v. Payment of ongoing carrying costs;
vi. The process to get the advice of the listing agent and to resolve disputes;
vii. Selection of a real estate lawyer and dealing with the sale proceeds.
[57] I will determine the form of the order that governs the sale process and then be available to meet with the parties to deal with sale-related issues that require adjudication.
Conclusion
[58] The Appellant has established that the proposed appeal raises issues that are not frivolous or vexatious but the merits of her appeal are low. She has not established irreparable harm within the meaning of the RJR-MacDonald test and the balance of convenience favors the Respondent. Accordingly, the motion for a stay pending appeal is dismissed, subject to my direction on the sale process.
[59] The court orders that the Appellant may remain in the property during the sale process for so long as she is able to take the reasonably necessary steps to maintain the home in a sale-ready condition in accordance with my order governing the sale process. Either party may request a continuation of this motion to address the sale-related issues.
Costs
[60] The parties are encouraged to agree on the issue of costs. If the parties are unable to agree on costs, they may make brief written submissions not exceeding three pages each, exclusive of attachments. The timing of the delivery of the costs submissions shall be done when the court finalizes the order governing the sale of the property.
____________________________
Justice M. Labrosse
Released: August 11, 2026
CITATION: Maghnam v. Maghnam 2026 ONSC 4651
DIVISIONAL COURT FILE NO.: DC-26-3174 DATE: 2026/08/11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
BASEL MAGHNAM
Appellant
– and –
STEPHANIE MAGHNAM
Respondent
ENDORSEMENT
Justice M. Labrosse
Released: August 11, 2026