Court File and Parties

COURT FILE NO.: FS-18-006008 DATE: 20190723

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

GILLIAN ISOBEL HUTCHISON-PERRY Applicant – and – DAVID DONALD PERRY Respondent

Counsel: Emily Kostandoff, for the Applicant Respondent, self-represented

HEARD: July 18, 2019

M. D. FAIETA j.

Reasons for Decision

Introduction

[1] The Applicant wife brings this motion seeking an order for the partition and sale of the matrimonial home that she and the husband both own. For the reasons described below, I have dismissed this motion.

Background

[2] The Applicant is 47 years old and the Respondent is 54 years old. The parties were married in August, 1996. There are four children of the marriage ranging in age from 12 to 17 years old. The Applicant states that she was a stay-at-home mother until she began attending York University in September 2016, where she now works as a part-time teaching assistant. The Respondent husband is a real estate litigation lawyer. He is a sole practitioner and works out of the matrimonial home. The Respondent states that he was admitted to the Law Society of Ontario in 2002. He worked for Legal Aid Ontario until 2004, then at Hacker, Gignac, Rice in Midland, Ontario until 2012. He states that he resigned and moved to Toronto in August 2012 to accommodate the Applicant’s acceptance into a program at the University of Toronto. The Respondent states that the parties and their children have lived in the matrimonial home since August 2012. In September 2012 the Respondent joined Mills & Mills LLP in Toronto and remained there until February 2014. The Respondent then worked from home as a sole practitioner. He took on a full-time contract with Hummingbird Lawyers LLP from July 2016 until February 2017. Since that time, the Respondent has worked from home as a sole practitioner. The Respondent states that he is a “full-time father and a part-time lawyer”.

[3] Both parties are of very modest means. The Applicant’s net income was $24,886 in 2015; $15,385 in 2016, and $16,891 in 2017. The Applicant states that the Respondent is intentionally underemployed. His net income was $2,636 in 2015; $31,106 in 2016; and $33,689 in 2017. The Applicant estimates that her share of the net family property is $22,631.78. The Respondent estimates that his share of the net family property is negative $31,227.38.

[4] The Applicant states that the Respondent has contributed little towards the cost of maintaining the matrimonial home or the family since he left Mills & Mills LLP in 2014. The Respondent states that he pays all of the household accounts and bills with the exception of the mortgage payment ($2,300 per month) and Bell account, which are paid by the Applicant. He states that the Applicant receives a Child Tax Benefit which she uses to pay the combined cost of these two expenses.

[5] The Applicant suffered permanent injuries to her left ankle as a result of a motor vehicle accident in 1998. As a result, the Applicant suffers from degenerative arthritis and she uses an Ankle Foot Orthosis to stabilize her ankle. The Respondent states that about $150,000 from the settlement of a personal injury lawsuit was used to pay off both parties’ student loans and provide for a down payment on their first home.

[6] The Applicant states that she asked the Respondent to leave the matrimonial home in March 2017. The Respondent denies this assertion. The Applicant moved into the basement in July 2017. The Respondent states that the Applicant told him that she wanted to separate at that time. The Respondent states that on September 3, 2017 the Applicant built some industrial shelves in an unfurnished basement room in the matrimonial home, set up a futon bed, and began sleeping that room. He states that they have lived separate and apart since that time. In April 2018 the Applicant states that she moved out of the matrimonial home as she could no longer tolerate being verbally abused by the Respondent. The Applicant returned to the matrimonial home one month later to be close to her children. She states that they have been living separate and apart since May 2018.

[7] The Applicant states that the parties exist in a state of constant conflict. When the parties do speak to one another, it typically leads to an argument. The children witness this conflict and the Applicant believes that it is not a healthy environment for the children. The Respondent states that he is not abusive to the Applicant or the children. The Respondent states that the Applicant is frequently openly hostile to him often with the children present. The Respondent states that the only way for him to communicate with the Applicant is indirectly through the children.

[8] The Respondent states that the Applicant counsels the children not to listen or do as they are asked by the Respondent. As a result, the children know they can go to the Applicant to get out of anything that the Respondent asks them to do.

[9] Both parents claim to be their children’s primary caregiver. They dispute both their current and historical parenting roles.

[10] The Respondent has not paid child or spousal support to the Applicant.

[11] The Applicant states that she should remain in the home with her children. It is close to their school and friends. The parties have moved seven times since their first child was born. While the children adapted to each move, the Applicant states that she wishes to maintain stability for her children.

[12] The Applicant states that her parents have assisted the parties on several occasions. Her parents placed a mortgage on their home in order to loan the sum of $60,000 to the parties as a down payment for the matrimonial home. In 2016 the outstanding balance of this loan was incorporated into the mortgage on the matrimonial home.

[13] The Applicant asked that the Respondent move from the matrimonial home at the earliest possible opportunity. She also asked that he find employment and begin paying support so that she could maintain the home pending an agreement to purchase the Respondent’s interest.

[14] This Application was commenced in November 2018. Both parties seek a divorce, spousal support, child support, custody, access, equalization of net family properties, and exclusive possession of the matrimonial home. In the alternative to exclusive possession of the matrimonial home, both parties seek, in the alternative, an order for immediate partition and sale of the matrimonial home with the net proceeds of sale to be held in trust by their real estate lawyer pending further order or agreement.

[15] Through counsel, the Respondent advised the Applicant in February 2019 that he was “content to either place the property for sale, or for [the Applicant] to assume title”.

[16] The parties rely on a realtor’s appraisal which estimates that the market value of the matrimonial home as of February 5, 2019 is between $734,000 and $774,000. The Respondent states that the parties have about $300,000 in equity in the matrimonial home and that, once the costs of selling the matrimonial home are incorporated, each party would receive “a little over $100,000.00”.

[17] By letter dated February 27, 2019 the Respondent’s lawyer advised the Applicant’s lawyer that since both parties were willing to have the Applicant buy the Respondent’s interest in the matrimonial home, the Respondent was asking for particulars regarding when and whether they would use one appraiser.

[18] Any consensus on whether the Respondent would buy the Applicant’s interest in the matrimonial home appears to have been short-lived. A case conference was held on March 4, 2019. Justice Diamond’s Endorsement states:

Case conference held today. My views on the issues of primary caregiver, residence, potential sale/buyout of matrimonial home, parenting and income/job opportunities were shared with the parties. Regrettably, no agreement on these issues was reached. Parties are now at liberty to bring motions on the above issues, and proceed into questioning if they choose.

[19] In April 2019 the Respondent delivered an offer to settle.

[20] On April 12, 2019 the Applicant’s lawyer advised the Respondent’s lawyer that she had been instructed to bring a motion to have the matrimonial home sold.

[21] By letter dated May 17, 2019 the Applicant’s lawyer stated that since both parties were unwilling to sell their interest in the matrimonial home to the other spouse, the only option was to list the matrimonial home for sale, then resolve when and how the matrimonial home should be sold.

[22] By letter dated June 17, 2019 the Applicant’s lawyer advised the Respondent’s lawyer as follows:

In April and May, we discussed the need to sell the matrimonial home. I proposed that your client either consent to the sale or agree to mediate. Your client has not accepted either of our proposals.

Ms. Hutchison-Perry is not prepared to wait any longer. She will be attending my office tomorrow to swear her affidavit in support of her motion to list the matrimonial home for sale. I will be serving you with our motion materials in a few days.

It is unfortunate that it has come to this point – arguing a motion on this issue will be costly.

[23] On June 17, 2019 the Respondent advised that he had chosen to act on his own behalf.

[24] By letter dated June 24, 2019 the Respondent told the Applicant that he both loves her and wants her to move out of the matrimonial home permanently so that the children remain in the home with him. The Respondent stated that he would not “accept any resolution that has our children living in this house alone with you”.

[25] The Applicant’s motion for an order requiring the sale of the matrimonial home, dated July 2, 2019, was served on that same day.

[26] By letter dated July 5, 2019 the Respondent offered to purchase the Applicant’s interest in the matrimonial home.

Position of the Applicant

[27] The Applicant states:

It is extremely difficult to live with Don but I cannot afford to leave the Matrimonial Home with our four children without accessing what little equity we have that is tied up in the Matrimonial Home. The Matrimonial Home must be sold so that Don and I can resolve the outstanding equalization issues and access our equity in the matrimonial home as soon as possible.

[28] The Applicant submits that she is entitled to an order for the sale of the matrimonial home in the circumstances – given that such motion is neither malicious nor vexatious nor would such order be oppressive to the Respondent’s interests. The Applicant also submits that the sale of the matrimonial home would be in the best interests of the children in order to reduce their exposure to conflict between their parents.

Position of the Respondent

[29] The Respondent submits that the partition and sale of the matrimonial home is not in the best interests of the children as it is unlikely that either the Applicant or the Respondent can afford to stay in Toronto. Neither has the means to buy another house in Toronto and renting a house that can accommodate four teenage children would deplete any capital gains realized from the sale of the matrimonial home. This would result in the children changing high schools and leaving their extra-curricular activities. He submits that they must remain in the matrimonial home for another five years until their youngest child completes high school.

[30] The Respondent also submits that it is financially irresponsible to sell the matrimonial home. He describes the estimated real estate commission on sale of about $42,375 as money wasted. The Respondent submits that he earns just enough to maintain the operation of the household. He states that the Applicant’s mother lives nearby and that as a temporary or longer term solution, the Applicant can live with her mother.

[31] In addition, the Respondent submits that the matrimonial home is “virtually unmarketable as it stands” and that it will take considerable work to prepare it for sale. Further the Respondent submits that the Applicant’s motion is a ploy to have the Respondent removed from the matrimonial home so that she can stay in it with the children “and have me pay for it”.

[32] Alternatively, if the court orders partition and sale of the matrimonial home, he requests that he be granted exclusive possession of the matrimonial home and exclusive carriage of the matrimonial home’s listing and sale.

[33] Finally, the Respondent sought an adjournment of this motion until November 2019 on the basis that he wished to retain counsel. He filed no materials in support of this request. The Respondent discharged counsel on the day that he was notified that this motion was being brought. In these circumstances, the Respondent’s request for a four-month adjournment so that he could be represented by counsel on this motion, after he filed a responding affidavit and a factum, was denied on the basis that it was a transparent attempt to delay the sale of the matrimonial home.

Analysis

[34] A joint tenant has a prima facie right to an order for the partition and sale of a matrimonial home under ss. 2 and 3 of the Partition Act, R.S.O. 1990, c. P.4. A court is required to compel the partition and sale of a matrimonial home unless the opposing party has shown that there is malicious, vexatious, or oppressive conduct on the part of the moving party in relation to the sale itself: Marchese v. Marchese, 2019 ONCA 116, at para. 5.

[35] There is some overlap in the scope of the terms “malicious” or “malice”, “vexatious”, and “oppressive”. “Malice” arises when a proceeding is brought for an improper purpose including spite, ill-will, vengeance, or to gain a private collateral advantage: Nelles v. Ontario, , [1989] 2 S.C.R. 170, at pp. 193-194. A proceeding may be viewed as “vexatious” for numerous reasons including when multiple proceedings are brought to re-litigate an issue already decided or when a proceeding is brought to harass or oppress others rather than to assert a legitimate right: Re Lang Michener et al. v. Fabian et al. (1987), , 59 O.R. (2d) 353 (H.C.); Chinese Publications for Canadian Libraries Ltd. v. Markham (City), 2017 ONCA 968, at para. 9; Van Sluytman v. Muskoka (District Municipality), 2018 ONCA 32, at para. 23. A motion for the sale of a matrimonial home is “oppressive” when the co-tenant that opposes the sale will suffer serious hardship if the matrimonial home is sold: MacDonald v. MacDonald (1976), , 14 O.R. (2d) 249 (Div. Ct.), at p. 254.

[36] The Respondent alleges that the Applicant has displayed the requisite malice, vexatious, and oppressive conduct because, amongst other things, she is seeking to sell the matrimonial home in order to “gain sole possession of the home, have the children stay with her, and have the respondent pay for it”. I do not accept the Respondent’s submission. Further, the Respondent submits that the Applicant has mischaracterized his contributions to the household and other matters. However none of this additional alleged objectionable conduct relates to the sale itself. I find that the Respondent has not shown that there is malicious, vexatious, or oppressive conduct on the part of the Applicant in relation to seeking an order for the sale of the matrimonial home.

[37] Additional considerations apply when a spouse seeks an order for the sale of a matrimonial home prior to the final determination of the spouses’ claims under the Family Law Act, R.S.O. 1990. c. F.3, (“FLA”). In such case, an application under the Partition Act should not proceed when the opposing spouse shows that the sale would prejudice the rights of a spouse under the FLA or a court order (see Silva v. Silva (1990), , 1 O.R. (3d) 436 (C.A.), at p. 445; Martin v. Martin (1992), , 8 O.R. (3d) 41 (C.A.), at para. 26 or, at the very least, that the opposing spouse’s arguable claims under the FLA would be prejudiced (see Binkley v. Binkley, [1988] O.J. No. 414 (C.A.), at para. 3; Gibson v. Duncan, 2013 ONSC 5377, at paras. 20-23).

[38] In their pleadings, both spouses claim exclusive possession of the matrimonial home and, in the alternative, seek an order for partition and sale of the matrimonial home. Under s. 24 of the FLA, in deciding whether grant an order for the exclusive possession of a matrimonial home a court is required to consider the best interests of the children, any existing orders, the financial position of the spouses, any written agreement between the spouses, the availability of other suitable and affordable accommodation, and any violence committed by a spouse against the other spouse or children. In assessing the best interests of the children, a court is to consider the possible disruptive effects on the child of a move to other accommodation and the child’s views and preferences if they can be reasonably ascertained.

[39] The Respondent submits that the sale of the matrimonial home is not in the best interests of their children as the Applicant has no plan going forward for the children if a sale is ordered. He submits that the matrimonial home should not be sold for six years until their youngest daughter completes high school given that the children have developed roots in the school community and given that they have moved many times in their short life. In contrast, the Applicant states that the children would not be adversely impacted by moving away from the matrimonial home. The Applicant states that there are plenty of housing options near the matrimonial home or even closer to the children’s school where the parties could establish their own separate households. Further, she submits that moving would the children’s exposure to the parental conflict and tension that exists in the matrimonial home.

[40] I find that the Respondent has an arguable claim for exclusive possession of the matrimonial home. As a result, the Respondent’s claim for exclusive possession will be prejudiced if the matrimonial home is ordered sold on this motion for partial summary judgment. For that reason, I dismiss the Applicant’s motion.

[41] Further, this motion is a motion for partial summary judgment although it was not characterized as such by either party. A motion for partial summary judgment is a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action or application and that may be dealt with expeditiously and in a cost-effective manner: Mason v. Perras Mongenais, 2018 ONCA 978, at para. 22. This is not one of those rare cases where a motion for partial summary judgment is appropriate as the Applicant’s claim for the sale of the matrimonial home is not readily bifurcated from the Respondent’s claim for exclusive possession.

Conclusions

[42] I dismiss the Applicant’s motion. If the Respondent seeks his costs of this motion, then the Respondent shall deliver his costs submissions, no more than three pages in length, in addition to any Outline of Costs and Offers to Settle, by July 26, 2019 and the Applicant shall deliver her responding submissions, on the same terms, by August 2, 2019.

[43] As noted in a letter dated February 27, 2019 from the Respondent’s former lawyer to the Applicant’s lawyer, “the parties do not have sufficient funds to litigate and should be looking to resolve all issues as quickly as possible”. Nevertheless, the parties have been unable to settle their claims. Given that the children have been exposed to their parents’ antagonistic behaviour for at least two years, and given that there is no reason to believe that such behavior will stop, I direct that the parties serve and file a Trial Management Conference Brief (Form 17E) by August 28, 2019 and attend a Trial Management Conference on September 3, 2019 at 4:00 p.m. before me, in order to bring all of the parties’ claims to trial by the end of this year if they cannot resolve their claims before that time.

Mr. Justice M. D. Faieta

Released: July 23, 2019