Court File and Parties

COURT FILE NO.: FS-16-85927-00 DATE: 2016-10-13

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

SUKHWINDER S. DULKU Kavita V. Bhagat, for the Applicant Applicant

- and -

PARMINDER KAUR DULKU Mukesh Bhardwaj, for the Respondent Respondent

HEARD: September 28, 2016, at Brampton, Ontario

Reasons For Order

Price J.

NATURE OF MOTION

[1] Since the applicant/husband, Sukhwinder S. Dulku (“Mr. Dulku”), moved out of the matrimonial home six months ago, he has been renting a basement apartment that he shares with his parents. When he exercises access to the parties’ three children, now 6 to 14 years old, the children also sleep in the basement apartment. Mr. Dulku would like the matrimonial home to be sold immediately, so that he can use his share of the proceeds of sale to buy more suitable accommodations for himself and his children.

[2] The respondent/wife, Parminder Kaur Dulku (“Ms. Dulku”), with whom the children primarily reside, would like to remain in the home. She says that once her claims to equalization of net family property and retroactive support are settled and paid, she will be able to buy Mr. Dulku’s interest in the home and continue living there with the children. She says that this would be in the children’s best interests, as they have just begun a new school year. She is prepared to continue making the mortgage and property tax payments herself.

[3] On April 26, 2016, the parties consented to an order of Justice Snowie that was intended to establish a framework that would enable Ms. Dulku to buy Mr. Dulku’s interest in the home or, if she was unable to do so, that would facilitate the parties’ listing of the property for sale. Both parties now move for orders enforcing different elements of Justice Snowie’s order. Mr. Dulku moves for the immediate sale of the home; Ms. Dulku moves for a determination of her rights to equalization and child support, so that she can buy Mr. Dulku’s interest and remain in the home.

BACKGROUND FACTS

The Parties’ Marriage and Separation

[4] Mr. Dulku is 41 years old; Ms. Dulku is 46. They were married in Punjab, India, on March 19, 2000. Ms. Dulku, for whom this was a second marriage, sponsored Mr. Dulku to come to Canada. He arrived in Canada as a permanent resident on December 23, 2001.

[5] There are three children of the marriage, namely:

1. Kreen Dulku, the parties’ 14 year old daughter, born December 12, 2001;
2. Shareen Dulku, their 13 year old daughter, born October 2, 2003;
3. Gaurav Dulku, their 6 year old son, born June 25, 2010.

[6] Mr. Dulku’s parents came to Canada also, and resided with the parties for most of their marriage. Ms. Duklu’s parents arrived in Canada more recently.

[7] The parties purchased the property at 37 Sugarhill Drive in Brampton, which became their matrimonial home.

[8] Ms. Dulku alleges that she was the victim of an escalating pattern of domestic violence by Mr. Dulku during their marriage. She says that she had limited fluency in written or spoken English, and that there were few agencies she could reach out to, as the South Asian community did not have good resources for abused women.

[9] In 2005, Ms. Dulku reported that Mr. Dulku had assaulted her. He was arrested, and a restraining order was made against him. He pleaded guilty to the charge. He says that he “had to plead guilty in order to make the restraining order go away and enable them to reconcile.”

[10] Ms. Dulku states that when she experienced emotional upheaval as a result of Mr. Dulku’s erratic and unstable behaviour, she discussed the idea of separation with him, but that it was not feasible for her. She had a limited social support network, she says, as her parents and siblings did not reside in Canada and that time, and Mr. Dulku promised to improve his behaviour.

[11] Beginning in 2012, Mr. and Ms. Dulku each owned and operated a dump truck. Ms. Dulku says that Mr. Dulku asked her to dispose of her truck, as he wanted to grow his business and required additional capital for that purpose. Ms. Dulku sold her truck on October 6, 2015 for $145,000. She says that some of the proceeds were used to pay family debts, and that Mr. Dulku took $60,000 of the proceeds and applied it to the loan he had taken for his own truck for Dulku K. Transport Ltd, of which he is the sole director. Mr. Dulku acknowledges that $60,000 of the proceeds was deposited to his corporate bank account.

[12] Ms. Dulku asserts that Mr. Dulku has a history of mental illness and has been admitted to hospital on multiple occasions. In 2015, Ms. Dulku alleged that Mr. Dulku was suicidal, and caused him to be committed under the Mental Health Act, as a person who was an imminent danger to himself or others. [1] When he was discharged, Ms. Dulku alleged that he had assaulted her.

[13] The parties separated after 16 years, but disagree on the date. Mr. Dulku says it was January 15, 2016, when they began living separate and apart under the same roof; Ms. Dulku says that it was March 31, 2016, when Mr. Dulku was charged with domestic assault and was removed from the matrimonial home. Although the date is relevant, as the parties’ net family property must be calculated with reference to it, neither party has offered any evidence as to what difference the date makes in the equalization payment that one owes the other.

Judicial Proceeding

[14] On March 31, 2016, Mr. Dulku entered into an Undertaking before an Officer in Charge arising from charge that he had assaulted Ms. Dulku. One of the conditions of his release was that he not attend at the matrimonial home. Ms. Dulku alleges that he breached his Undertaking on April 15, 2015, when a neighbor advised her that Mr. Dulku had come to the home while she was dropping the children at school.

[15] Mr. Dulku began the present proceeding by an Application issued on March 21, 2016, a week after he moved out of the home. He claimed a divorce, custody of the children, child support, equalization of net family property, and sale of family property. He did not plead the Partition Act, [2] as a basis for selling the home.

[16] Ms. Dulku delivered her Answer on April 19, 2016. She claimed a divorce, spousal support, custody of the children and child support, equalization of net family property and exclusive possession of the matrimonial home.

Justice Snowie’s Order

[17] A Case Conference was held on April 26, 2016. On that date, the parties consented to an order by Justice Snowie, “on an interim without prejudice basis.” The Order contained the following terms relevant to the present motions:

1. The parties will pick three real estate agents, each with a minimum of 3 listings in the neighbourhood (10 km radius) and over the last 6 months, and obtain comparative market analysis from each. The said shall be exchanged within a week. The Respondent (Ms. Dulku) will permit access to the Applicant’s agents.
2. The Respondent will obtain a mortgage pre-approval letter, signifying her ability to buy out the Applicant’s interest in the home, within 20 days of the exchange of the comparative market analyses.
3. The parties will exchange the financial disclosure set out in their respective requests for information within 30 days. If such disclosure is not available, they will provide the reasons in an affidavit.
4. The Respondent will be responsible for making the mortgage payments, taxes, and other expenses of the home, until the buy-out or the sale. The Applicant recognizes that he is responsible for such of the mortgage and property taxes and the same will be deducted from his share of the equity.
5. The parties will list the home for sale by June 1st.
6. If the Respondent is unable to refinance the home in her sole name, the matrimonial home will be listed for sale.
7. The transfer of title / buy-out of the matrimonial home will take place after the parties have exchanged Net Family Property Statements within 30 days, and come to an agreement regarding the equalization payment within 20 days. If there is no agreement, either can proceed with a motion for sale or buy-out of the home.
8. If the Respondent defaults in making the payments set out on page 6 of the consent order, and cannot cure the default within 15 days, the home will be listed for sale within 15 days of the default.

[18] Justice Snowie’s order provided that Mr. Dulku would have regular access to Gaurav and Shareen, and that Ms. Dulku would have regular access to Kreen, to be expanded in the future. It further provided for counselling for the children, and requested involvement of the Office of the Children’s Lawyer. In “Counsel’s notes,” attached to the consent, it was noted that the oldest child did not want to meet with the mother, and the middle child did not want to meet with the father. Both parents alleged alienation, and felt that the other was using the children as pawns. Both parents claimed the grandparents were a negative influence.

[19] The order was silent as to child support and spousal support.

Recent Developments

[20] Justice Barnes heard the parties’ motions for temporary custody of and access to the children on June 15, 2016. He initially adjourned the motions to July 7, 2016, pending receipt of a “Views and Preferences Report” by a psychologist, Dr. Pushpa Kanagaratnam.

[21] On August 24, 2016, after receiving Dr. Kanagaratnam’s reports dated May 22 and July 18, 2016, Justice Barnes released his decision. He found this to be a high conflict family in which each of the parents had tried to alienate the children from the other. He noted that:

1. Kreen wished to reside with her father and had a negative view of her mother;
2. Shareen wished to reside with her mother and had a negative view of her father; and that
3. Gaurav had a good relationship with both parents and was demonstrating symptoms of anxiety and guilt, as a result of the actions of the parents in drawing the children into their conflict.

[22] Justice Barnes concluded, “[b]oth parents have demonstrated a profound inability to recognize that their inability to cooperate on parental issues is adversely affecting the children.” (Emphasis added) He ordered the parties to take counselling for parents in high conflict situations, and to undergo family counselling designed to reduce conflict and allow for family interactions that would be in the best interests of the children.

[23] Justice Barnes granted Mr. Dulku interim custody of Kreen, granted Ms. Dulku interim custody of Shareen and Gaurav, and ordered that each parent would have access to the child/children who was in the custody of the other. He stated, in effect, that the custody and access provisions that the parties had consented to before Justice Snowie on April 26, 2016, would remain unchanged.

[24] On September 22, 2016, less than a month after Justice Barnes released his decision regarding residence of the children and the parents’ access to them, Mr. Duklu made the present motion for immediate sale of the home. Ms. Dulku opposes Mr. Dulku’s motion. She brought her own motion for an order requiring Mr. Dulku to provide the remainder of the financial disclosure she has requested, declaring the value of the home, and granting her an equalization payment and child support, including retroactive support.

ISSUES

[25] The court must now determine the following issues:

1. Does the court have jurisdiction to order the sale of the home at this time?
2. Would an order for immediate sale of the home defeat competing rights under the Family Law Act? [3]
3. Can the court determine, based on the evidence before it, the value of the home, the equalization payment, or the child support payable?

PARTIES’ POSITIONS

[26] Mr. Dulku argues that an immediate sale of the home is in his and the children’s interests, as their accommodation is limited when Mr. Dulku exercises access. He further argues that an order for the sale of the home at this time would not defeat Ms. Dulku’s right to buy the home, as the order can be made on terms that will enable her to make a sealed bid to buy the house herself. In response to the court’s observation that he did not plead the Partition Act in his Application or Notice of Motion, [4] Mr. Dulku argued that Justice Snowie had ordered the sale of the home, and that the court should not go behind that order to question whether there was jurisdiction to make it.

[27] Mr. Dulku argues that Ms. Dulku’s claim to an equalization payment can be adequately secured by directing that a portion of the net proceeds of sale of the home be held in trust, and by restricting the use that Mr. Dulku may make of his share of the net proceeds, by directing that he use it only to purchase a house of his own, which could then serve as security for any amount he is eventually found to owe Ms. Dulku as an equalization payment or as support.

[28] Ms. Dulku opposes Mr. Dulku’s motion for immediate sale of the home. She argues that Mr. Dulko has not complied with the terms of Justice Snowie’s order for financial disclosure. She says that she needs that disclosure to determine the equalization payment she is entitled to, and to facilitate her purchase of Mr. Dulku’s interest in the home. She also notes that there is a difference of over $100,000 between the real estate appraisals that the parties have exchanged, which prevents the parties from agreeing on the terms of a buy-out or on an initial listing price for the home.

[29] Ms. Dulku says that requiring Mr. Dulku to produce the remainder of his financial disclosure, and declaring the value of the home, and granting her an equalization payment and child support will enable her to buy Mr. Dulku’s interest in the home or, alternatively, determine how the net proceeds of sale of the home should be divided.

ANALYSIS AND EVIDENCE

Legislation

[30] The Court may order sale of a jointly owned property pursuant to the Partition Act. [5] Mr. Dulku has not pleaded the Partition Act [6] in his Application, or in his Notice of Motion.

[31] The FLA [7] gives the court a limited jurisdiction to order the sale of a matrimonial home in certain circumstances, as where the ownership of the property is in issue, or where the sale of the home is necessary to satisfy an order for equalization of net family property. Neither of those circumstances exist here. Section 9(1) of the FLA states:

9(1) In an application under section 7 [for equalization of Net Family Property], the court may order,

(d) that, if appropriate to satisfy an obligation imposed by the order,

(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years, or

(ii) any property be partitioned or sold. [8]

Jurisprudence

[32] In Mignella v. Federico, 2012 ONSC 5696, in 2012, I reviewed the principles governing motions for interim sale of a matrimonial home. [9] I noted that Justice Polowin, in Kereluk v. Kereluk, in 2004, examined the court’s jurisdiction to make such orders. In that case, the wife, had moved in with her parents after the parties separated, and wanted the home sold; the husband had remained in the home, wanted to buy his wife’s interest, and opposed the sale of the home on the open market. The parties’ 12-year-old child resided equally with each parent. Justice Polowin, after reviewing the law, concluded that the court had no jurisdiction. Under s. 10 of the FLA, to order partition and sale of the home pending trial, [10] such jurisdiction being conferred only by the Partition Act, which the wife had not pleaded. [11]

[33] I noted, in Mignella, that Justice Osborne, speaking for the Court of Appeal, in Martin v. Martin, in 1992, pointed out the limited circumstances under which an order for sale should be made under the Partition Act. He stated:

Orders for the sale of a matrimonial home made before the resolution of Family Law Act, 1986 issues (particularly the determination of the equalization payment) should not be made as a matter of course. See Binkley v. Binkley (1988), , 14 R.F.L. (3d) 336 (Ont. C.A.) In addition, spousal rights of possession (s. 19) and any order for interim exclusive possession should be taken into account. [12] [Emphasis added]

[34] Justice Jarvis applied a similar analysis in Zargar v. Zarrabian, 2016 ONSC 2900, in 2016. [13] He cited Goldman v. Kudelya, in 2011, in which Justice McGee stated:

A property owner, whether the holder of an exclusive interest or a joint interest, has a prima facie right to sale. When the property consists of an interest in a matrimonial home, that prima facie right is subject to any competing interests under the Family Law Act that would otherwise be defeated.

To make a pre-trial order for the sale of a matrimonial home, the court must first determine whether the resisting party has established a prima facie case that he or she is entitled to a competing interest under the Family Law Act. If not, then the right to sale prevails. If so, then the motion for sale is denied unless the selling party can demonstrate that the sale would not prejudice the rights of the resisting party.

Applying the legal principles to the facts of this case

a) Does the court have jurisdiction to order the sale of the home at this time?

[35] Mr. Dulku has not pleaded the Partition Act, [14] and the limited circumstances in which an order of sale can be made pursuant to the FLA [15] do not exist in the present case. The ownership of the property is not in issue, and the sale of the home is not necessary to satisfy an order for equalization of net family property.

[36] Mr. Dulku argues that objections to the court’s jurisdiction cannot prevail in the present case, because Justice Snowie already ordered that the home be sold, and this court should not now go behind that order, and question the court’s jurisdiction to make it. I disagree, for two reasons:

1. Consent does not confer jurisdiction on the court. See, in this regard, the decision of this court in Gatt v. Rumack (1994), in 1994. [16]
2. Justice Snowie’s order for sale of the house was conditional, and the conditions were not met. The order provided that the transfer of title or buy-out of the matrimonial home was to take place after the parties exchanged Net Family Property Statements, which they were to do within 30 days, and after they had come to an agreement regarding the equalization payment, which they were to do within a further 20 days. If there was no agreement, either party was granted leave to proceed with a motion for sale or buy-out of the home. The fact that the order contemplated a motion for sale of the home demonstrates that the parties did not consent to a sale, and Justice Snowie did not make a determination that the home would be sold.

b) Would an order for immediate sale of the home defeat competing rights under the Family Law Act?

[37] An order for the immediate sale of the home would defeat Ms. Dulku’s right to possession of the home under section 19(1) of the Family Law Act. It would also affect the children, Shareen and Gaurav, who are principally resident with Ms. Dulku. The children have no rights of their own to possession of the home, but their best interests are a factor that the court must consider in determining whether a sale of the home should be ordered, having regard to the impact such a sale would have on the children. The Family Law Act provides, in this regard, as follows:

19.(1) Both spouses have an equal right to possession of a matrimonial home.

24.(1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may, on application, by order,

(a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents;

(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs….

(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;

(d) direct that the contents of the matrimonial home, or any part of them,

(i) remain in the home for the use of the spouse given possession, or

(ii) be removed from the house for the use of a spouse or child;

(e) order a spouse to pay for all or part of the repair and maintenance of the matrimonial home and of other liabilities arising in respect of it, or to make periodic payments to the other spouse for those purposes;

(f) authorize the disposition or encumbrance of a spouse’s interest in the matrimonial home, subject to the other spouse’s right of exclusive possession as ordered;

(2) The court may, on motion, make a temporary or interim order under clause (1)(a), (b), (c), (d) or (e).

(3) In determining whether to make an order for exclusive possession, the court shall consider,

(a) the best interests of the children affected;

(b) any existing orders under Part 1 (Family Property) and any existing support orders;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children.

(4) In determining the best interests of a child, the court shall consider,

(a) the possible disruptive effects on the child of a move to other accommodation; and

(b) the child’s views and preferences, if they can reasonably be ascertained. [17] [Emphasis added]

[38] In determining whether to make an order ending the right to exclusive possession, which Ms. Dulku has exercised exclusively since Mr. Dulku departed from the home on March 31, 2016, and directing the sale of the home, the court must consider the same factors which it must consider before making an order for exclusive possession pursuant to s. 24(1) of the FLA. [18] I will therefore turn to consider the factors set out in s. 24(3) of the FLA, beginning with the best interests of the children. [19]

(i) The Best Interests of the Children

[39] As noted above, Justice Barnes released his decision regarding residence of the children, and the parents’ access to them, on August 24, 2016. Less than a month later, on September 22, 2016, Mr. Duklu made the present motion for immediate sale of the home. His response to Justice Barnes’ decision can be discerned from his affidavit sworn September 13, 2016, in which he states:

I applied for another legal aid certificate when I wanted to appeal Justice Barnes’s decision as it is treated as a different matter. This request was denied. I did not have private funds to appeal the decision and am forced to live with it. [Emphasis added]

[40] Mr. Dulku minimizes the potential impact of a sale of the home on the children. In his affidavit dated September 13, 2016, he states:

6. … Kreen and I have been out of the home since March 31, 2016. All three children are forced to face the reality of my living conditions when they are in my care.
7. The home was unaffordable when we were living together. We had numerous discussions about selling the home even when we were together. The children were always mentally prepared for this eventuality.
8. The children will thrive if we are able to provide the much needed safety and security. The matrimonial home is but a structure, it is time to move on. [Emphasis added]

[41] Ms. Dulku states that selling the home at this time would have a negative impact on the children. In her affidavit dated September 20, 2016, she states:

18. … the sale of the matrimonial home will have a detrimental impact on the children and will cause additional stress on the children. This is the children’s birth home. This home is all they know;
19. Shareen and Gaurav are currently living close to their elementary school and have close friends in the neighbourhood. Shareen will be graduating to high school in June 2017 and the high school is very close to the matrimonial home. It will be extremely difficult for Shareen to move to another school at this time as she is preparing to graduate with her close friends. Shareen has been under a lot of stress lately and this change will be too much for her ….
20. …If the matrimonial home is sold, it would be extremely difficult for me to get back into home ownership market in my neighbourhood as resale homes are spares in that neighbourhood. I would be homeless with my two children and forced to rent until the market cools down…. [Emphasis added]

[42] Dr. Kanagaratnam, in his report, did not address the importance of the home to the children, or the impact that its sale would have on them. He also did not comment on the impact Mr. and Ms. Dulku’s separation has had on the children, or the extent to which stability is important to them at this time. He noted in his July report that “[a] comprehensive custody and access assessment involving all the family members is needed, in order to provide a detailed formulation and recommendations to resolve what seems to be an ongoing high conflict situation.”

[43] Justice Snowie made a request on April 26, 2016, for involvement of the Office of the Children’s Lawyer. On August 23, 2016, Justice Bielby observed in an endorsement that the OCL had appointed a clinical investigator who had only started his interviews. A clinical investigation normally takes approximately 3 ½ months, so if the clinical investigation began in August, it is likely that a report will not be completed until the end of November. The report will provide a more complete and impartial assessment and will yield a better basis for determining the potential impact of a sale of the home on the children.

[44] In the meantime, I find that a sale of the home at this time would likely be disruptive to Shareen, who is 13. It would have a lesser impact on Gaurav, who is 6. As Ms. Dulku notes, Shareen will be graduating to high school in June 2017. It is in her best interests to postpone a sale of the home, or the closing of a sale, at least until then.

(ii) The Financial Position of the Spouses

[45] Both of the parties were self-employed dump truck drivers during the marriage. Their principal asset was their matrimonial home. Their next largest assets were the trucks that each of them owned. They disposed of their trucks either shortly before they separated, in the case of Ms. Dulku, or shortly after, in the case of Mr. Dulku.

• Mr. Dulku’s Circumstances Post-Separation

[46] It is difficult to know, without a forensic audit, what Mr. Dulku’s true income from his business as a dump truck driver really was. His Notices of Assessment from the Canada Revenue Agency disclose a Line 150 income (total income) of $25,326 in 2012, $25,500 in 2013, and $25,950 in 2014. The Notices of Assessment show identical total income, net income, and taxable income in those years, so they do not enable the court to differentiate between Mr. Dulku’s gross revenue and his net income.

[47] Mr. Dulku’s Notices of Assessment disclose that his total income tax (federal and Ontario) was $300 in 2012, $300 in 2013, and $1,131 in 2014. His after-tax income was therefore $25,026 in 2012, $25,200 in 2013, and $24,819 in 2014. His average reported annual after-tax income was $25,015, which translates to $2,085 per month.

[48] Ms. Dulku alleges that Mr. Dulku’s income during the marriage was much higher than the $25,000 he reported to the Canada Revenue Agency. She estimates that it was $90,000 to $100,000, and that the nature of his trucking business allowed him to write off many expenses and conceal cash income.

[49] Ms. Dulku is skeptical of what Mr. Dulku says about his financial circumstances. In her Answer, she states:

I will need a tracing of accounts of all the funds that the Applicant has taken from his income as well as our joint income and sent back to India as well as given to his parents to keep in their accounts. I believe that the Applicant has taken money, knowing the pending breakdown, and given it to his parents to conceal. I know that the Applicant has bank accounts with ICICI bank, but I have never seen a record. I know, first hand, that the Applicant has sent money to his relatives to India through the assistance of Western Union. At many points, I asked the Applicant and was immediately shut down with an abusive response regarding where these funds were going and why his relatives needed them. I believe the Applicant’s relatives are holding this money for the Applicant and will be used by the Applicant his parents to purchase their new home upon separation. I will need a trace of these funds as well. [Emphasis added]

[50] What Ms. Dulku asserts in her Answer is not evidence, but it reflects the deep distrust she has for Mr. Dulku, and the skepticism with which she regards his statements about his earnings.

[51] Mr. Dulku acknowledges that after Ms. Dulku sold her truck on October 7, 2015, $60,000 of the net proceeds of sale were deposited into his corporate bank account in November 2015. He has not accounted for these funds.

[52] Mr. Dulku’s financial statement sworn March 2, 2016, does not disclose the $60,000 he had deposited to his corporate bank account two months earlier from the proceeds of sale of Ms. Dulku’s truck. However, his financial statement shows that his truck lease as a $60,000 debt on January 15, 2016, and as nil on March 2, 2016. The most likely explanation is that Mr. Dulku used the $60,000 which he had received in November 2015 into his corporate bank account to pay off his $60,000 truck lease, to reduce it to nil by March 2, 2016.

[53] The financial statement shows the balance owing on Mr. Dulku’s business line of credit as nil on January 15, 2016, and $50,000 on March 2, 2016, when he swore the statement. This suggests total expenditures of $50,000 in the 1 ½ months from January 15 to March 2, 2016.

[54] Mr. Dulku’s financial statement reflects that his credit card debts were $6,300 (TD VISA) and $5,000 (BMO Mastercard) on January 15, 2016, and “to be determined” on March 2, 2016. If he had paid them off by then, he had reduced his debt by $11,300 during that 1 ½ month period.

[55] Mr. Dulku’s financial statement further discloses that Mr. Dulku held $13,635 in his bank accounts on January 15, 2016, when the parties separated, including $4,846 in joint accounts with Ms. Dulku, and $4,900 on March 2, 2016, when he swore his financial statement. Therefore, his credit card debt declined by $11,300 during the period, but his bank balances declined by only $8,735 (the difference between $13,365 and $4,900).

[56] Mr. Dulku states that after he separated from Ms. Dulku, he was unable to return to work immediately as he was suffering from depression and anxiety. He was incapable of driving his truck, he says, and was having difficulty securing contracts over the winter months, in spite of his efforts to seek contracts at several places.

[57] Ms. Dulku disputes Mr. Dulku’s claim that he was, in effect, medically disabled from maintaining his employment. In her affidavit dated September 20, 2016, she states:

The Applicant now states that he could not work because he was depressed and had anxiety. I have yet to receive any letters or doctors note to confirm the Applicant’s recent revelations. The Applicant also states that he could not work as his truck was broken, he could not work as he was committed at the Hospital on a suicide watch, and he could not work because of his criminal charges. The Applicant was committed to the Hospital because he told Kreen, in a drunken state, that he wanted to commit suicide and Kreen and I went to the Police. The Applicant is full of excuses. However, in paragraph 15 [of his affidavit dated September 13, 2016] the Applicant states, “I wanted to figure out the living arrangements and care of the children first, before I went back to work. I didn’t want to jeopardize my claim for primary residence. Ms. Bhagat advised me time and again that working would not be used as a leverage and I am not risking my claim for custody but I was just not willing to take chances.” [Emphasis added]

[58] Mr. Dulku states that although he was unable to drive his truck, he continued making the monthly payments of $5,000 for his truck lease, parking, plate fees, and vehicle insurance, from his business line of credit. Eventually, he secured a contract, but says that he then encountered mechanical problems with his truck, and incurred over $25,000 in expenses for repairs. He says that in spite of these expenses, he continued to encounter mechanical problems with the truck, and eventually had to sell the truck in June 2016. He says that he applied the $130,000 proceeds of sale as follows:

1. $40,000 to pay off his truck lease. (His financial statement sworn March 2, 2016, showed $60,000 owing on the lease on January 15, 2016, and nil on March 2nd; which suggests that the lease was, in fact, paid off by March 2, 2016, with the $60,000 Mr. Dulku had received into his corporate account in November 2015 from the sale of Ms. Dulku’s truck);
2. $30,000 to reduce or retire the balance of his business line of credit. In his financial statement sworn March 2, 2016, he claimed that his business line of credit, which was nil on January 15, 2016, was $50,000 on March 2nd.
3. $25,000 to pay off the repair cost, which was a condition of the sale.
4. The balance ($35,000) to reduce or retire the balance of debt on his credit cards, which he says he had used to pay his day to day necessities.

[59] If Mr. Dulku used the $60,000 he received from Ms. Dulku in November 2015, to pay off his truck lease by March 2, 2016, It is difficult to account for where he spent the $40,000 he says he used to pay off the truck lease in June. He may have used $20,000 of this amount to reduce his business line of credit, which appears to have declined from $50,000 on Mach 2, 2016, when he swore his financial statement, to $30,000 in June, when he paid it from the proceeds of sale of his truck. That leaves a balance of $20,000 unaccounted for.

[60] It is also difficult to understand why the balance owing on his credit cards, which had been $11,300 on January 15, 2016, and were “to be determined” on March 2, 2016, when he swore his financial statement, had increased to $35,000 by June 2016, when he says he sold his truck. If he increased his credit card debt by $35,000 from March 2 to June 2016, and spent $20,000 in June 2016, from the proceeds of his truck, which was the balance remaining after he paid off the credit cards and the business line of credit, a total of $55,000 in expenditures from March 2 to June 2016.

[61] Based on the foregoing analysis, Mr. Dulku appears to have spent, or otherwise disposed of, $50,000 over the 1 ½ months from January 15 to March 2, 2016, and a further $55,000 over the 3 months from March 2 to June 2016. That is, he spent of disposed of $105,000 in the six months from January 15 to June 2016, apart from the repairs that he says he incurred on his truck, which were paid from the proceeds of its sale.

[62] Mr. Dulku says that when he separated from Ms. Dulku, she retained the family’s only car, leaving him without a vehicle. Mr. Dulku’s parents allowed him to use their leased car, for which he makes the lease payments of $600 per month, as he was no longer able, he says, to rent a car himself, as he had done before his separation from Ms. Dulku.

[63] Mr. Dulku says that after selling his truck, he tried to return to his previous employment but was unsuccessful. He and Ms. Dulku had worked at the same place and people in their industry knew about their problems. They had separated three times. Now, with new criminal charges against him, he says, he found it difficult to secure new employment as a truck driver.

[64] Finally, a relative of Mr. Dulku’s referred Mr. Dulku to a company where he was a long-standing employee, Quatro Access Solutions. Quatro Access Solutions is a national company with headquarters in Toronto. They provide matting and other temporary road and bridge access services to the oil and gas, mining, and general construction industries for the transportation of heavy equipment. Mr. Dulku was hired there as a dispatcher at a wage of $12 per hour. This translates to $2,064 per month, or $24,960 per year, assuming a 40 hour work week, 52 weeks per year. Mr. Dulku has not produced his employment contract or pay slips, from which the court could determine what his take-home pay is, or whether overtime is available to him, or whether his income is likely to increase in the foreseeable future.

[65] At $25,000 per year, I infer that his income tax would be approximately the same as it had been from 2012 to 2014, and that his after-tax income was therefore still approximately $2,085 per month.

[66] Mr. Dulku says that he currently spends $1,000 on rent and $600 on the lease payments for the car his parents are letting him use. Additionally, he says that he pays $175 per month for Gaurav’s soccer lessons, and $320 per month for Kreen’s tutoring, based on her teacher’s recommendation. These expenses alone total $2,095. Mr. Dulku’s other personal expenses, as he reported them in his financial statement dated March 2, 2016, were $1,440 per month, apart from those expenses associated with the matrimonial home, which are now being paid by Ms. Dulku, and the expenses associated with his truck, which he sold in June. If these are added to the $2,095, it would appear that his total monthly personal expenses are $3,535.

[67] If Mr. Dulku receives take-home pay of $2,085 per month, he could not maintain expenses of $3,535 per month without either an undisclosed income, or increasing debt.

[68] Additionally, Mr. Dulku has incurred at least $3,500 in legal expenses since the parties’ separation. In his affidavit dated September 13, 2016, Mr. Dulku states:

I was forced to retain the services of a criminal lawyer when the charges were laid. I provided my criminal lawyer, David Locke, with an initial retainer of $3,500. As of today, we have attended court 5 times. My retainer is exhausted. Mr. Locke has sought a payment of $8,000. I have advised him that I am looking to retain alternate counsel as I cannot afford him. I applied for a criminal legal aid certificate but was declined. I need to come up with a minimum retainer of $3,000 to retain another criminal lawyer.

[69] Mr. Dulku has presented contradictory evidence as to whether he is currently assisting his parents, Amrit Singh Dulku and Sharanjeet Dulku, financially, or whether they are assisting him. In their affidavit dated June 2, 2016, they state:

Over the course of the years we have loaned our son and daughter in law money as they have been struggling to make ends meet. We are fortunate that we own land in Punjab, India, which is leased, and we derived income from the same. That said, our assets have now diminished, we are old and incapable of being gainfully employed, and we are completely dependent on the children. [Emphasis added]

[70] In his affidavit dated September 13, 2016, Mr. Dulku states:

My parents are old and can no longer work to sustain themselves. I do acknowledge that they have worked off and on when our finances were in the doldrums and after the commencement of the proceedings they have once again taken on general labour jobs to assist me with my finances. I recognize Parminder opines otherwise and the court has to decide this issue. [Emphasis added]

[71] Mr. Dulku states in his affidavit that over the past 15 years, his parents contributed over $100,000. His counsel, in oral argument, stated that he now claims that the amount exceeds $110,000. Ms. Dulku denies this. Mr. Dulku states, “[i]t is anticipated that there will be a joint debt owing to [his] parents.”

[72] It is doubtful that the parties will be able to settle their respective entitlements arising from their separation, including the issue of what equalization payment one owes the other, and their respective entitlements to distribution to the net proceeds of sale of the home until they resolve the issue of this alleged joint debt to Mr. Dulku’s parents.

[73] In his affidavit dated September 13, 2016, Mr. Dulku states:

The proceeds of the sale would free up funds that would assist in paying them back. I recognize that even if the home is sold and the proceeds released to us my parents may not get what’s owed to them. That said, at least I will be able to free up funds to provide a suitable accommodation for them and give them funds to travel to India or for their day to day needs.

[74] If Mr. Dulku’s parents have a genuine claim and can support it with evidence, they should be added as parties to the present proceeding and produce the evidence in support of their claim. If they do not, either because the evidence does not exist, or because they failed to assert their claim in a timely manner, Mr. Dulku would be needlessly complicating the present proceeding by allowing an alleged obligation to them to impede the resolution of his issues with Ms. Dulku and, in particular, the issue regarding the disposition of the home.

[75] In Lo Giacco v. Papadopoulos, in 2005, Hoilett J. observed, “I make the trite observation, that it is risky business trying to resolve factual issues based on conflicting affidavits, upon which there has been no cross-examination; indeed, even where there has been cross-examination, the undertaking can be, at times, daunting.” [20] In a similar vein, the Court of Appeal, in an appeal from a summary judgment in Compresseurs Gagnon Inc. v. Max Auto Supply Ltd., in 1998, stated, “[t]he motions judge had before him conflicting affidavit material on the issue of whether the appellant effected this contract as agent. Moreover, there had been no cross-examination on this material. In our view, summary judgment should not have been granted at this stage.” [21]

[76] I am unable to determine at this stage of the proceeding, based on Mr. Dulku’s limited financial disclosure, the parties’ conflicting affidavits, and Mr. Dulku’s sometimes self-contradictory evidence, to what extent he genuinely needs the home sold at this time, or whether he is seeking the sale, in large part, to enhance his strategic position in relation to his claim for primary residence of the children, or to benefit his parents and provide more suitable accommodation to them and himself. In his affidavit dated September 13, 2016, he makes a revealing statement:

The more I wait the more of my equity is being eaten up. The real estate bubble can burst any time. To provide stability to the children, I reluctantly consented to a possible buy-out. The buy-out never happened. The order states I am responsible for 50% of the payments towards the equity of the home. This cannot continue forever.

[77] Even if the house were sold, as Mr. Dulku requests, he would not be entitled to an immediate distribution of his share of the net proceeds of sale. The net proceeds would have to be paid into court pending determination as to Ms. Dulku’s entitlement to an equalization payment and of repayment of the $60,000 Mr. Dulku took from the proceeds of sale of her truck, as well as retroactive child support, if that hasn’t yet been paid. Rule 66.03 of the Rules of Civil Procedure provides, in that regard:

66.03 All money realized in a partition proceeding from sale of land shall forthwith be paid into court, unless the parties agree otherwise, and no money shall be distributed or paid out except by order of a judge or, on a reference, by order of the referee. [22]

• Mr. Dulku’s Obligation to Pay Child Support

[78] Both the Family Law Act [23] and the Divorce Act [24] provide that the amount of child support is to be determined in accordance with the Federal Child Support Guidelines (“FCSG” or “the Guidelines”). [25]

[79] Section 3 of the Guidelines provides that, presumptively, child support, including interim child support, is to be calculated based on the payor’s income. Section 3 provides, under the heading “Amount of child support: presumptive rule,” the following:

3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought

[80] The Guidelines provide, in section 2, that a payor spouse’s income means his annual income as determined by reference to the methodology set out in sections 15 to 20 of the Guidelines. [26] Those sections direct the court through a series of alternative methods for determining income until a fair one is found. Section 15 provides that where spouses do not agree in writing on a spouse’s annual income, it shall be determined by considering the remaining methods, set out in sections 16 to 20. [27]

[81] As Mr. and Ms. Dulku do not agree, the court must look to sections 16 to 20. Section 16 provides that the court should, first, consider a parent’s or spouse’s income to be the “Total Income” as set out on line 150 of his Income Tax Return:

16. Calculation of annual income. -- of Subject to sections 17 to 20, a parent’s or spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.

[82] Section 17(1) of the Guidelines provides that if the spouse’s total income for the previous year would not be the fairest way of determining his income for purposes of support, the court may average his income over the last three years to determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income, or receipt of a non-recurring amount during those years. [28]

[83] Section 19 of the Guidelines provides that the court may, in appropriate circumstances (that is, in circumstances where the previous methods have been found not to be fair), impute an amount of income to a spouse. [29] To the extent that I am able to determine it at the present stage of the proceeding, and based on the limited financial disclosure made, the circumstances set out in s. 19 are not applicable.

[84] Neither Mr. nor Ms. Dulku has produced their Income Tax Returns or Notices of Assessment for 2015.

[85] In her affidavit dated September 20, 2016, Mr. Dulku states that on October 23, 2015, at the request of Mr. Dulku, she sold the dump truck she had used since 2012 as the basis for her business and her means of generating an income. In her Answer dated April 18, 2016, she stated that she was out of work and looking for a means of supporting herself. In her affidavit dated September 20, 2016, she states that on July 3, 2016, she started a new job. She has not yet disclosed her employment contract or pay stubs, which might enable the court to determine her current income. Accordingly, her average income based on her Notices of Assessment for 2012 to 2014 is the most recent evidence from which her income can be determined.

[86] Ms. Dulku claims child support retroactive to March 31, 2016. Pursuant to the Guidelines, and based on Ms. Dulku’s averaged income of $9,501.33, her child support obligation for the support of Kreen, the one child residing with Mr. Dulku, is nil. [30]

[87] As noted above, Mr. Dulku’s Line 150 income, as stated in his most recent Notices of Assessment, was $25,326 in 2012, $25,500 in 2013, and $25,950 in 2014. As there was little fluctuation in his income over those years, I find that his income is $25,950, based on his most recent Notice of Assessment, pursuant to s. 16 of the Guidelines. [31] This amount is likely under-stated, having regard to the fact, as noted above, that he appears to have spent or otherwise disposed of $105,000 from January 15 to June 2016.

[88] Based on Mr. Dulku’s income of $25,950, his child support obligation for the support of Shareen and Gaurav is $386 per month. His retroactive child support obligation from March 2016, when the parties separated, to October 2016, is therefore $3,088. These amounts will be subject to re-calculation when better evidence is available regarding Mr. Dulku’s income.

• Ms. Dulku’s Circumstances Post-Separation

[89] Ms. Dulku’s income during the marriage was, like Mr. Dulku’s, derived from self-employment. It was therefore equally subject to being under-reported.

[90] Ms. Dulku has produced her Notices of Assessment for 2012, 2013, and 2014. They disclose that her Line 150 incomes for those years of $5,750 in 2012, $1,200 in 2013, and $21,554 in 2014. Because there is significant fluctuation in her incomes from 2012 and 2013 to 2014, the Federal Child Support Guidelines (“FCSG”) directs that her income for those years be averaged. [32] This results in an income of $9,501.33.

[91] In her financial statement sworn April 18, 2016, Ms. Dulku says that her income the previous year was $21,554, which corresponds to her Line 150 income in her Notice of Assessment for 2014. Her Notice of Assessment discloses deductions of $7,059, and a net income and taxable income of $14,495.

[92] Ms. Dulku has continued residing in the matrimonial home with Shareen and Gaurav since the parties separated. She says that she has made the monthly mortgage payments and paid the property taxes and is able to continue doing so.

[93] In her affidavit dated September 20, 2016, Ms. Dulku states that she began new employment on July 3, 2016, in order to pay her expenses, including the mortgage and property taxes on the home, and all house bills, food, and necessities for Shareen and Gaurav. She says that she has been able to make ends meet. She has not yet produced her employment agreement or pay stubs, which the court would require to assess Ms. Dulku’s ability to continue paying the expenses associated with the home, or obtain financing that would enable her to buy out Mr. Dulku’s interest in the home.

• Ms. Dulku’s Claim for Equalization Payment

[94] Mr. Dulku acknowledges that Ms. Dulku will be entitled to an equalization payment from him. Ms. Dulku calculates her equalization entitlement to be $88,260.28, based on what she calculates to be Mr. Dulku’s net family property of $274,903.26 and hers of $98,382.71. Mr. Dulku calculates Ms. Dulku’s entitlement to be $20,239.87, based on what he calculates to be his net family property of $203,290.58 and hers of $162,810.84. The difference in their calculations derives principally from their differing valuations of the matrimonial home.

[95] Mr. Dulku produced three comparative market analyses of the value of the home from different realtors in the neighbourhood. Rick Malhi states that the home should be listed at between $625,000 and $635,000 (a mid-point of $630,000). Sukhwinderjit Singh states that it should be listed for between $620,000 and $630,000 (a mid-point of $625,000). Saab Azra states that it should be listed for between $600,000 and $620,000 (a mid-point of $610,000). The average of the three mid-points is $621,666.

[96] Ms. Dulku produced a single comparative market analysis from Arun Jaska, who states that the home should be listed at between $495,000 and $505,000. Ms. Dulku notes that Mr. Dulku states that the home next door to the matrimonial home sold for $615,000 and was smaller than the matrimonial home. Ms. Duklu states that the home across the park in the immediate area of the matrimonial home with a two car garage sold in early 2016 for approximately $500,000. Ms. Dulku states that Mr. Dulku’s market analyses were done at the end of May and in June 2016. Hers was done 2 days after Justice Snowie’s endorsement, on April 28, 2016, and closer to the date of separation.

[97] The issue of whether an immediate sale of the home would defeat Ms. Dulku’s FLA claims is determined based on a test of whether there is a genuine issue for trial. [33] It is therefore appropriate to base an estimate of Ms. Dulku’s claim for an equalization payment on her evidence as to the value of the home, as this is the assumption most favourable to her in determining whether she has a reasonable prospect of buying out Mr. Dulku’s interest in the home. The evidence she has advanced establishes a prima facie case for the equalization payment she claims. On that basis, and for the purpose only of the present motion, I accept Ms. Dulku’s position that she will be entitled to an equalization payment of $88,260.28

[98] As noted above, Ms. Dulku entitlement to retroactive child support from March 2016, to October 2016 is $3,088. She may also be entitled to the return of the $60,000 which Mr. Dulku acknowledges having received from the proceeds of sale of Ms. Dulku’s truck in November 2015, shortly before the parties separated.

[99] Based on the foregoing, Ms. Dulku’s combined entitlement to equalization payment, repayment of the $60,000, and retroactive child support is $151,348.28.

[100] The most recent evidence I have as to the amount currently outstanding on the parties’ mortgage is Ms. Dulku’s most recent Net Family Property Statement, attached to her affidavit dated September 20, 2016, which indicates that the amount of the mortgage on March 31, 2016, was $350,000. If Ms. Dulku is correct that the value of the home is $500,000, and the mortgage amount is $350,000, the combined equity of the parties is $150,000, and Mr. Dulku’s share of that amount is $75,000 before adjustments. If that amount is deducted from the combined amount of $151,348.28 owing to Ms. Dulku as an equalization payment, re-payment of the $60,000, and retroactive child support, Mr. Dulku would owe her the difference, amounting to $76,348.28. This amount, deducted from the $350,000 amount owing on the mortgage, would leave Ms. Dulku requiring financing for only $273,651.72.

[101] The cost of a mortgage in the amount of $273,651.72 from TD Canada Trust, which currently holds the mortgage on the matrimonial home, would be $1,241.47 per month on a 5 year closed variable rate mortgage at 2.6% interest, according to the web site of TD Canada Trust.

[102] If Ms. Dulku has been able to secure employment that provides a minimum wage, which is currently $11.40 per hour in Ontario as of October 1, 2016, or $23,712 on an annualized basis, assuming 40 hours per week and 52 weeks per year, she will be required to pay the following income tax:

1. Her federal income tax will be 15% (the rate applied to the first $45,282 of taxable income, according to the web site of the Canada Revenue Agency);
2. Her provincial tax will be 5.05% (on the first $41,536 of taxable income).

[103] The result is that Ms. Dulku’s after-tax income will be 79.95% of $23,712, or $18,958, or $1,579.81 per month. Additionally, she is entitled to receive the following:

1. $386 per month in child support;
2. $450.00 for Canada child benefit; and
3. $92.95 for Ontario child benefit. [34]

[104] On this basis, Ms. Dulku’s total monthly income will be $2,508.76 per month. If she pays $1,241.47 of this amount for her mortgage, $350 for property tax, and $65 for property insurance (the latter two amounts being the amounts Mr. Dulku claims for these items in his financial statement dated March 2, 2016), her total carrying cost for the home will be $1,656.47 per month, which will leave her with $852.29 per month for other expenses.

[105] Mr. Dulku’s parents, in their affidavit dated June 2, 2016, state:

To our knowledge Parminder no longer wanted us to live in the home as her parents are now permanent residents as she wants them to live in the home.

[106] If Ms. Dulku’s parents are residing with her in the home, or wish to do so, rent from them could provide an additional source of income to Ms. Dulku, with which she could defray the carrying costs of the home or meet her other monthly expenses.

[107] Based on the foregoing, I am unable to find that Ms. Dulku has no reasonable prospect of buying Mr. Dulku’s interest in the home once her entitlement to an equalization payment, child support, and the return of her $60,000 has been determined.

(iii) Any written agreement between the parties

[108] As noted above, the conditions that the parties agreed to for sale of the home were not met. In the consent which the parties signed at the Case Conference before Justice Snowie on April 26, 2016, they agreed to a sale of the home on certain conditions, as follows:

a) The parties were to select three real estate agents, each with a minimum of three listings in the neighbourhood (10 km radius) and over the last six months, and obtain comparative market analysis from each. The analyses were to be exchanged within a week. Mr. Dulku selected three agents and obtained market analyses from each, Ms. Dulku selected only one, and did not provide a market analysis from that agent, as required. b) Ms. Dulku was to obtain a mortgage pre-approval letter, signifying her ability to buy out Mr. Dulku’s interest in the home, within 20 days of the exchange of the comparative market analyses. She did not obtain the pre-approval letter, as she was unemployed, but she has now secured new employment, and says that she would now qualify for a pre-approval letter and could readily obtain one. c) The parties were to exchange the financial disclosure set out in their respective requests for information within 30 days. If the disclosure requested was not available, they were to provide the reasons in an affidavit. Mr. Dulku, in particular, did not provide the disclosure Ms. Dulku requested, and did not provide the requisite affidavit. d) The parties were to list the home for sale by June 1st, which would have made it possible for the property to be listed after the children had finished their school semester, and to sell the house during the best real estate market, to enable a prospective buyer to take occupancy by the end of the summer. They did not comply with the conditions in the order and list the property by June 1st. e) If Ms. Dulku was unable to refinance the home in her sole name, the matrimonial home was to be listed for sale. As noted above, Ms. Dulku did not obtain a pre-approval letter evidencing her ability to re-finance the home in her name, which she attributes to her unemployment, which has now ended. She also says that she requires the financial disclosure from Mr. Dulku so that she can determine her own ability to purchase his interest and satisfy the bank that she is capable of doing so and carrying the house herself. f) The transfer of title / buy-out of the matrimonial home was to take place after the parties had exchanged Net Family Property Statements within 30 days, and come to an agreement regarding the equalization payment within 20 days. If there is no agreement, either party was permitted to proceed with a motion for sale or buy-out of the home. The fact that Mr. Dulku has brought such a motion, and the fact that the motion was contemplated by the order in the present circumstances demonstrates that no order directing the sale of the home has yet been made. That determination must still be made in the present motions, and before doing so, I must be satisfied that the court has the necessary jurisdiction to make the order requested. For the reasons set out above, it is my view that it does not have that jurisdiction until Mr. Dulku amends his pleading and motion to request relief pursuant to the Partition Act. g) If Ms. Dulku defaulted in making the payments set out in page 6 of the order, and was unable to cure the default within 15 days, the home was to be listed for sale within 15 days of the default. Mr. Dulku asserts that Ms. Dulku has defaulted in her payments of property insurance ($65 per month, according to his financial statement sworn March 2, 2016) and in her payments on the parties’ joint line of credit, secured by the home. Mr. Dulku says he has paid these amounts, in order to protect his credit. I note, from Mr. Dulku’s financial statement sworn March 2, 2016, that he claims no amount for his business line of credit as of January 15, 2016, when he says the parties separated, and $60,000 on March 2, 2016, and that he later states that this entire balance was retired from the proceeds of sale of his truck in June 2016. He shows no joint personal line of credit in his financial statement and no monthly debt serving payments among his expenses. If Ms. defaulted in the expenses which Justice Snowie’s order required her to pay, those defaults appear to have been minimal, and the fact that Mr. Dulku does not allege that she defaulted in the mortgage payments of $1,450 per month (according to his financial statement), it would appear that she has substantially complied with the order. If there were defaults, Mr. Dulku has not provided sufficient evidence for the court to determine when the defaults occurred and whether Ms. Dulku was asked to cure them within 15 days, or whether she did so.

(iv) The Availability of Other Suitable and Affordable Accommodation

[109] When Mr. Dulku left the matrimonial home, he moved to a basement apartment that he rented in Brampton for $1,000 per month. He has continued to reside there with the parties’ eldest daughter, Kreen, and Mr. Dulku’s parents. The apartment consists of 1000 square feet and has 2 bedrooms. On days when Mr. Dulku exercises access to his children, Kreen, who is 15, sleeps in her own bedroom with Shareen, who is 13, Mr. Dulku’s 65-year-old father, Amrik, and his 58-year-old mother, Sharanjeet, share the second bedroom, and Mr. Dulku’s 6-year-old son, Gaurav, sleeps with Mr. Dulku in the living room. Mr. Dulku submits that the accommodation is inadequate for 6 people.

[110] Mr. Dulku expresses concern that his 13-year-old daughter, Shareen, may renew her allegations that he sexually assaulted her. He says that he worries that his family’s cramped living conditions increase this risk, and would make it more difficult for him to refute the allegation. He notes that a medical professional concluded that Shareen was influenced to make her allegation, and that Justice Barnes apparently rejected the allegation, in that he granted Mr. Dulku unsupervised access to Shareen. Nevertheless, Mr. Dulku says that he lives in fear of further allegations, and he argues that it is in the children’s best interest that he be enabled to buy a new home where each of the children can have her own bedroom.

[111] While I agree with Mr. Dulku that his family’s current accommodations are cramped for 6 people, I am not convinced by his argument that the conditions expose him to a heightened risk of criminal allegations. His 13-year-old daughter, Shareen, the only child who made allegations against him, shares a bedroom with her 15-year-old sister, Kreen. It is difficult to understand how sharing a bedroom with Kreen increases the risk that she will make allegations against her father, or that there would be no witnesses to refute such allegations.

c) Can the court determine, based on the evidence before it, the value of the home, the equalization payment, or the child support payable?

[112] The parties disagree as to the value of the matrimonial home. The appraisals they have obtained are over $100,000 apart. Mr. Dulku produced three comparative market analyses from different realtors in the neighbourhood. As noted above, the average of these is $621,666, which I would round up to $625,000.

[113] Ms. Dulku produced a single comparative market analysis from Arun Jaska, who states that the home should be listed at between $495,000 and $505,000. Mr. Dulku states that she has failed to list the most recent sales in the neighbourhood.

[114] The parties’ comparative market analyses differ by over $100,000. Having regard to this fact, and to the deficiencies each attributes to the other’s analyses, and in the absence of cross-examination on the authors of the analyses, I am unable to determine the value of the matrimonial home at this time. For this reason, a process will be ordered to establish the value for the purpose of determining Ms. Dulku’s equalization entitlement, and the amount she must pay to Mr. Dulku for his interest in the home.

[115] The parties will be ordered to jointly retain a certified property valuator to provide a reliable current market value of the home. If they are unable to agree on the selection of the valuator, they may apply to the court for directions, on the basis of their evidence as to the qualifications and cost of the valuators they propose. The cost of the valuation shall initially be met by Mr. Dulku, subject to re-apportionment in an eventual costs order. The parties shall ultimately be equally responsible for the cost of the valuation. Ms. Dulku’s share shall be reimbursed to Mr. Dulku from the proceeds of sale, or added to the amount of any buy-out amount paid by her to Mr. Dulku.

CONCLUSION AND ORDER

[116] Mr. Dulku’s motion for the immediate sale of the home is premature until he amends his application and motion to plead the Partition Act. [35] That Act is the sole basis for the court’s jurisdiction to order a sale of a matrimonial home, absent the narrow circumstances in which the court can make such an order under the Family Law Act, which do not exist in the present case. The consent that the parties signed on April 26, 2016, which was the basis for Justice Snowie’s order, which was conditional on steps which the parties did not take, cannot confer that jurisdiction on the court to order a sale now.

[117] An order for the immediate sale of the home would defeat Ms. Dulku’s rights under the Family Law Act [36] to possession of the home and to use her entitlement to an equalization payment, retroactive child support, and repayment of the $60,000 proceeds from the sale of her truck, to buy out Mr. Dulku’s interest in the home. Having regard to the dispute as to the value of the home and, therefore, as to the amount of equalization payment that Ms. Dulku is entitled to, it cannot be said at this stage of the proceeding that her claim has no reasonable prospect of success.

[118] While no final determination can be made at this stage of the proceeding as to the value of the home, and as to the amount of Ms. Dulku’s entitlement to an equalization payment, a determination can and has been made, on a temporary basis, as to the child support she is entitled to be paid, retroactive to March 2016, when Mr. Dulku was removed from the home.

[119] In order to avoid further delay and legal expense, I propose to adjourn the motion, to a date before me, to give Mr. Dulku the time he needs to amend his pleadings and to give Ms. Dulku the time she needs to secure pre-approval for financing and to make an offer to buy Mr. Dulku’s interest in the home.

[120] For the foregoing reasons, it is ordered that:

1. The motion is adjourned to October 27, 2016, at 9 a.m. before me, on the following terms: a) Both parties have leave to amend their pleadings by October 15, 2016, to plead the Partition Act. [37] b) Mr. Dulku shall, beginning November 1, 2016, and on the 1st of each month thereafter, pay to Ms. Dulku temporary child support in the amount of $386 per month for the support of Shareen Dulku and Gaurav Dulku, based on his average income for 2012 to 2014. c) Mr. Dulku shall forthwith pay to Ms. Dulku arrears of child support from March 2016 to October 2016, inclusive, for the support of Shareen Dulku and Gaurav Dulku, fixed in the amount of $3,088. d) Mr. Dulku shall forthwith serve these reasons on his parents and deliver (serve and file) proof that he has done so. e) If Mr. Dulku’s parents intend to assert a claim to an interest in the home, or to any party’s share of the net proceeds of disposition of the home, they shall do so by October 25, 2016, and attend court on October 27, 2016. f) Mr. Dulku shall, by October 25, 2016, produce any remaining documents required by Ms. Dulku’s requests for information. In particular, he shall produce his personal and corporate Income Tax Returns for 2015, including all schedules and attachments, and his Notice of Assessment for that year, and that of any corporation in which he has in interest. If he does not produce the financial disclosure required, he shall, by that date, produce an affidavit setting out the following information: i. Whether the document was ever in his possession and, if it is no longer so, then when and under what circumstances it ceased to be in his possession; ii. The name and contact information of the person and, if applicable, the agency, in whose possession the document is now believed to be. He shall also produce the written copies of written requests he has made for the document and the responses he received. Additionally, he shall, within five days after receiving a direction from Ms. Dulku’s lawyer, sign and return it, authorizing and directing the person or agency in possession of the document to produce it, at Mr. Dulku’s expense, direction to Ms. Dulku’s lawyer. iii. The reasons the document was not produced. g) Each of the parties shall, by October 25, 2016, produce two up-to-date Financial Statement and Net Family Property Statements to the other, with the dates of separation alleged by each of the parties, together with all documents relied on in support of the assets and liabilities set out in the Statements. h) Ms. Dulku shall, by October 25, 2016, produce, if she can secure one, a pre-approval letter for financing the property in her name, together with an Offer to Settle the disposition of the matrimonial home, either by purchasing Mr. Dulku’s interest or proposing a formula for distribution of the net proceeds of sale of the home to a third person. i) The parties shall, before October 27, 2016, seek to agree on a draft Listing Agreement, and shall be prepared to file the draft Agreement on October 27th for approval by the Court. j) If the parties are unable to agree on the costs of these motions, the parties shall, on October 27, 2016, be prepared to file written arguments, not exceeding 4 pages, addressing the issues set out in one of the costs endorsements I have made in the past year, available on the data base, and a Costs Outline.

Price J. Released: October 13, 2016

COURT FILE NO.: FS-16-85927-00 DATE: 2016-10-13 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: SUKHWINDER S. DULKU Applicant - and - PARMINDER KAUR DULKU Respondent REASONS FOR ORDER Price J. Released: October 13, 2016

[1] Mental Health Act, RSO 1990, c M.7, s. 20(5)

[2] RSO 1990, c P.4 [Partition Act].

[3] R.S.O. 1990, c. F.3 [FLA].

[4] Supra note 1.

[5] Ibid.

[6] Ibid.

[7] Supra note 2.

[8] Supra note 2 at s. 9(1).

[9] Mignella v. Federico, 2012 ONSC 5696 at paras. 23 -31, 222 A.C.W.S. (3d) 172.

[10] Supra note 2.

[11] Supra note 1.

[12] Martin v. Martin (1992), , 89 D.L.R. (4th) 115 (Ont. C.A.) at para 26.

[13] Zargar v. Zarrabian, 2016 ONSC 2900 at para. 8, 266 A.C.W.S. (3d) 159.

[14] Supra note 1.

[15] Supra note 2.

[16] Gatt v. Rumack (1994), 21 O.R. (3d) 655 (Ont. S.C.).

[17] Supra note 2 at ss. 19, 24.

[18] Supra note 2 at s. 24(1).

[19] Supra note 2 at s. 24(3).

[20] Lo Giacco v. Papadopoulos, [2005] W.D.F.L. 1671, Hoilett J., at para. 4 (Ont. S.C.).

[21] Compresseurs Gagnon Inc. v. Max Auto Supply Ltd., at para. 1.

[22] Rules of Civil Procedure, R.R.O. 1990, Reg. 194, s. 66.03.

[23] Supra note 2 at s. 31(1).

[24] Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 15.1(3).

[25] Federal Child Support Guidelines, S.O.R./97-175.

[26] Ibid at s. 2.

[27] Supra note 24 at s. 15.

[28] Supra note 24 at s. 17(1).

[29] Supra note 24 at s. 19.

[30] Supra note 24.

[31] Supra note 24 at s. 16.

[32] Supra note 24 at ss. 15-19.

[33] Supra note 8 at paras. 30-31.

[34] Based on 2015 entitlements, according to the Canada Child Credit Calculator on the Canada Revenue Agency web site.

[35] Supra note 1.

[36] Supra note 2.

[37] Supra note 1.