Court File and Parties

Court File No.: FC-18-2065 Date: 2019/04/26 Superior Court of Justice - Ontario

Re: Allen Clark, Applicant And Kim Fuelling, Respondent

Before: Aitken J.

Counsel: Katherine Shadbolt, for the Applicant John Summers, for the Respondent

Heard: April 16, 2019

Endorsement

History

[1] The Applicant and the Respondent started to cohabit on November 1, 2014 at the Applicant’s property at 132 Bayview Drive, Woodlawn. The parties separated on May 1, 2018.

[2] In October 2017, the Applicant purchased 25 Russell Street North, Arnprior (“the Russell Street property”) for $115,000. The Applicant paid 100% of the down payment of approximately $3,000 and paid all costs associated with the purchase. He financed the rest of the purchase by borrowing on his line of credit and then converting this line of credit to a mortgage. The mortgage is in his name alone. He has continued to pay the mortgage, property taxes, insurance, and other maintenance and upkeep expenses associated with the Russell Street property.

[3] The Applicant agreed to register title to the Russell Street property in the joint names of himself and the Respondent. The Respondent’s mother moved from Markham to Ottawa in December 2017 and, the same month, moved into the Russell Street property. In April 2018, the Respondent’s mother started to pay rent to the Applicant in the amount of $500 per month. She has continued to do so. The parties presented conflicting evidence as to their understanding regarding the Russell Street property in terms of beneficial ownership, payment of expenses, use of the property, the term of occupancy of the Respondent’s mother, and the financial arrangements with the Respondent’s mother.

[4] When the parties separated, the Respondent moved into the Russell Street property to live with her mother. In each of July and August, 2018, the Respondent paid the Applicant $500 as a contribution to the expenses associated with that property. The Respondent has made no contributions to such expenses since August 2018. On average each month, these costs are $1,700 for the mortgage and $187 for the property taxes. The Applicant anticipates that he could generate $1,400 per month in rental income for this property.

[5] On November 21, 2018, the Applicant commenced these proceedings for, among other things, the sale of the Russell Street property under the Partition Act, R.S.O. 1990, c. P. 4, ss. 2 and 3.

[6] The Respondent brought a motion on January 3, 2019 for leave to file her Financial Statement without serving and filing her Notice of Assessment for 2015. The affidavit submitted in support of the motion was not sworn. As well, there was no evidence that the Respondent had requested her Notice of Assessment from the Canada Revenue Agency.

[7] At a case conference on January 10, 2019, Master Fortier gave the Respondent until January 18, 2019 in which to file her Answer, Amended Answer, Financial Statement, and Certificate of Disclosure, and until February 8, 2019 in which to file her 2015 Notice of Assessment. In addition, orders were made requiring the parties to provide additional financial disclosure by February 10, 2019. A timetable for the litigation was established. On February 21, 2019, the Applicant consented to the late filing of the Respondent’s pleadings. They were eventually filed on February 22, 2019 but without the Respondent’s 2015 Notice of Assessment.

[8] At the return of the motion on April 16, 2019, the Respondent sought an adjournment so that another version of the affidavit filed in response to the motion, and the Respondent’s Factum, could be filed with the court. According to the Respondent’s counsel, the wrong version of the Respondent’s affidavit had initially been filed and it was too late to file the correct version once the Respondent had received the Applicant’s consent to late filing. As well, the Respondent wanted the motion adjourned so that cross-examinations on affidavits could occur.

[9] Considering the delay in these proceedings already caused by the Respondent, I refused the adjournment; however, I accepted the new version of the Respondent’s affidavit, and the Respondent’s Factum, over the bench.

Partition and Sale of 25 Russell Street North, Arnprior

[10] The Respondent opposes the sale of the Russell Street property for the following reasons: (1) the property is where her mother currently resides, her mother has dementia, and selling the property could have a substantial impact on her health; (2) the Respondent may want to purchase the Applicant’s interest in the property (though this assertion was not repeated in the Respondent’s revised affidavit filed on this motion); and (3) the Applicant purchased the property as a gift for the Respondent and her mother (though the Respondent stated in the earlier affidavit that she was not involved in any way in the Applicant’s purchase of the property nor did they have any discussions about it).

[11] The reasons advanced by the Respondent to oppose or delay the sale of the Russell Street property are not persuasive.

[12] First, there is no medical evidence before the court regarding the Respondent’s mother. Nor is there any evidence to the effect that the Respondent’s mother could not be cared for adequately in another residence or facility. There is no medical evidence to the effect that the Respondent’s mother requires such extensive care that the Respondent is unable to work outside the home. Nor is there any evidence that whatever care the Respondent’s mother needs could not be provided by someone other than the Respondent. In any event, the Applicant owes no obligation to support the Respondent’s mother or to provide her with a place to live.

[13] Second, the evidence regarding the Respondent’s current financial status and her plans for the future does not suggest that the Respondent now has, or in the near future will likely have, the financial resources necessary to purchase the Applicant’s interest in the Russell Street property. All of the evidence points to the need to sell this property.

[14] Third, although the two affidavits filed by the Respondent on this motion are vague on the issue of the Applicant making a gift to the Respondent, they do not seem to allege that the Applicant intended to give his entire equity in the Russell Street property to the Respondent. I read the affidavits as alleging that the Applicant intended to give the Respondent some interest in the property. This then takes us back to the need for the partition or sale of the property so that all parties with a potential interest in the property can realize their share. In the context of this case, the only feasible way to share any interest would be for the property to be sold. The court has no jurisdiction to order one party to sell his or her interest in property to the other, or to order one party to purchase the other party’s interest in the property.

[15] Consequently, I make the following order:

• The property at 25 Russell Street North, Arnprior, Ontario K7S 2J2, shall be sold, forthwith, pursuant to the Partition Act.
• The Russell Street property shall be immediately listed for sale with Mr. Paul LaVictoire of Keller Williams at a listing price he recommends. The property shall continue to be listed for sale until sold at a price and on terms acceptable to the Applicant. While the property is listed for sale, the Respondent, while residing at the property, shall make the property presentable for showings and shall facilitate such showings at all reasonable hours upon reasonable notice.
• The Respondent shall provide vacant possession of the Russell Street property on or before June 30, 2019 unless the parties agree in writing to any other date for vacant possession to be provided.
• The Applicant shall pay the monthly carrying costs for the Russell Street property, including but not limited to the mortgage, property taxes, and property insurance, until the property is sold – without prejudice to either party’s position regarding an accounting upon a final determination of their respective rights in the property and their respective rights and obligations regarding spousal support.
• For as long as the Respondent’s mother continues to reside at the Russell Street property, the expectation shall be that she will continue to pay to the Applicant $500 per month as rent.

Interim Spousal Support

[16] The parties cohabited for three and a half years. The Applicant was divorced. The Respondent had been in a long-term cohabitation arrangement prior to entering her relationship with the Applicant. The parties have no children.

[17] Throughout their relationship, the parties both worked outside the home and paid for their own expenses. The Applicant operates his own roofing business. The Respondent had various jobs of her choosing, often in retail. In April 2018, the Respondent left her job at Home Hardware. The evidence of the parties as to why the Respondent left her job at that time is conflicting. The Respondent is now attending Willis College for the Medical Office Administrator’s course. In addition, she provides care and support to her mother.

[18] The Applicant’s Notices of Assessment for the 2015, 2016, and 2017 taxation years show total incomes of $49,573, $61,177, and $49,233 respectively. His most recent Financial Statement shows a gross income of $56,612 from all sources in 2018. The Respondent’s December 17, 2018 Financial Statement shows her total annual income as $16,080. Her 2017 Notice of Assessment shows her total income as $25,099. Her 2016 Notice of Assessment shows her total income as $23,529.

[19] It is not at all clear that the Applicant has any support obligation toward the Respondent. To the extent that he does, that support obligation is minimal. The most the Applicant would be ordered to pay to the Respondent by way of spousal support is a monthly amount for a short period of time or a small lump sum payment. Since the parties’ separation, the Applicant has been paying all of the expenses associated with the Russell Street property where the Respondent and her mother are residing, subject to a contribution from the Respondent’s mother of $500 per month since April 2018, and subject to a contribution from the Respondent of $500 for each of the months of July and August, 2018. No evidence has been presented by the Respondent that would justify a compensatory support order.

[20] Twelve months have elapsed since the parties’ separation. Taking at face value the Applicant’s evidence that the monthly carrying costs of the Russell Street property are at least $1,887, or $22,644 annually, and deducting the contributions to those expenses made by the Respondent and her mother ($7,500), that leaves a shortfall of $15,144 or $1,262 per month.

[21] In her most recent Financial Statement, the Respondent shows her total monthly expenses as being $1,836, but that includes a monthly rental expense of $500, which the Respondent is not paying. After deducting the $500 attributable to rent, the Respondent’s monthly shortfall is $1,336 – very close to the amount of the expenses the Applicant is paying to maintain the Russell Street property for the benefit of the Respondent and her mother. Even if we only consider the difference between the rent the Applicant thinks he could receive for the Russell Street property ($1,400) and the rent he is receiving from the Respondent’s mother ($500), there is a $900 per month shortfall being absorbed by the Applicant to the Respondent’s benefit. Interim support of $900 per month for the Respondent, in the circumstances of this case, would not be out of the range of potential support orders. As well, I note that the benefit the Respondent is receiving through the Applicant paying for the expenses associated with the Russell Street property is not taxable in her hands whereas she would have to pay income tax on any periodic spousal support she received.

[22] For these reasons, I will not make an interim spousal support order at this time in favour of the Respondent.

The Way Forward

[23] Any outstanding disclosure orders shall be complied with within 15 days of the release of this endorsement.

[24] Questioning may occur. Such questioning must take place prior to May 31, 2019.

[25] A settlement conference shall immediately be scheduled – to happen at the earliest date following the completion of questioning.

[26] The balance of the Applicant’s motion and the Respondent’s cross-motion are adjourned.

[27] The parties may make brief written submissions on costs within 15 days of the release of this endorsement.

Aitken J. Date: April 26, 2019