Court File and Parties

Court File No.: FS-20-00014878-0000 Date: 2024-03-01 Ontario Superior Court of Justice

Between: REDOUANE KAMIL, Applicant – and – SOUAD BOUCHIR, Respondent

Counsel: Mesha Donaldson, for the Applicant Ms. P. Bhardwaj, Agent for the Respondent

Heard: September 14, 2023 and In Writing: November 17, 2023

Before: Vella J.

Reasons for Decision

Introduction

[1] The Applicant (the “Father”) seeks an order directing the sale of the matrimonial home, municipally known as 39 Muirbank Boulevard, Scarborough, Ontario. The Father proposes that each party receive some of the proceeds from the eventual sale, with the balance to be held in trust by the real estate lawyer with carriage of the sale, pending determination of the remaining claims including equalization and support.

[2] The Respondent (the “Mother”) objects and submits that a sale of the matrimonial home will adversely impact the mental health of one of the children (NK), who lives with autism. She also submits that forcing the sale of the matrimonial home at this time will prejudice her equalization and support claims.

[3] This matter originally came before me on September 14, 2023. During the course of oral submissions, I expressed a concern that there was no expert medical/psychological evidence to address the Mother’s primary contention that should NK be forced to give up his childhood home, it would adversely impact his mental health.

[4] In Fernandes v. Darrigo, 2018 ONSC 1039, 11 R.F.L. (8th) 81, the Divisional Court permitted fresh expert medical evidence concerning the impact of selling the matrimonial home on a child living with autism. The court set aside the motion judge’s decision ordering a sale of the matrimonial home, finding that there was “the reasonable prospect that to [sell the matrimonial home] would prejudice the health of the child”: at para. 20. In light of Fernandes, I determined that I would adjourn the balance of the motion (after hearing fulsome submissions on the merits of the motion), to permit the Mother to adduce expert evidence in support of her claim as it relates to NK’s health. I did this in order to safeguard the best interests of NK, and because it was the expeditious and fair way to resolve this motion.

[5] The Mother’s counsel advised that she would require 30 days to adduce expert opinion evidence. Accordingly, at the conclusion of oral submissions, I adjourned the balance of this motion to be heard in writing in order to permit the Mother to provide the requisite expert evidence and the Father an opportunity to then respond.

[6] I received a further affidavit from the Mother, a responding affidavit from the Father, and written submissions from both parties restricted to the issue of whether the sale of the matrimonial home would adversely affect NK’s mental health.

[7] I did not receive any expert evidence.

Background

[8] The parties married on October 24, 2007 in Morocco.

[9] The parties own the matrimonial home as joint tenants. The home was purchased on December 9, 2010.

[10] The parties separated on or about October 24, 2019. The Father has not resided in the matrimonial home since the date of separation, as he claims he was “kicked out”. The Mother and children have been residing in the matrimonial home for over four years post-separation.

[11] The parties have three children of the marriage: AK, born April 9, 2008; NK, born on January 14, 2010; and A, born on February 23, 2012. All three children have lived in the matrimonial home since its purchase.

[12] The Mother also has an adult son from a previous marriage who resides with her.

[13] NK attends school in a different catchment area (Pickering) than the matrimonial home’s location (Scarborough) and is bussed to school. This is because he is in an educational program tailored to his special needs. He goes to the same school as his eldest sister.

[14] This Application was commenced in 2020 by the Father. There were initially competing proceedings. The Mother commenced a family law proceeding in Morocco and obtained an annulment of the marriage in Morocco, based on the Father’s commencement of this Application for divorce. The annulment was set aside by the Moroccan court, but the Mother obtained a divorce again on May 22, 2023.

[15] The Mother advised this court that she would not take steps to finalize a divorce proceeding in Morocco, and she has now asserted claims under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) and the Family Law Act, R.S.O. 1990, c. F.3. However, she continued proceedings in Morocco, causing delays in the Ontario proceeding. Ultimately, the Mother conceded that Ontario has jurisdiction over the family law issues raised in the Application.

[16] There have now been several court orders from this court – so many that Justice Faieta directed the Applicant to upload all of the endorsements and orders to a separate folder in Caselines. As of the date of Justice Faieta’s endorsement (June 12, 2023), there had already been five disclosure orders made against the Mother. In addition, there was a failed motion to strike for noncompliance with disclosure orders against the Mother. Some of the endorsements found that the Mother acted unreasonably during the course of these proceedings. Costs have been awarded against the Mother in the amount of $3,950, arising out of noncompliance with disclosure orders. A further motion to strike was scheduled by the Father for November 2, 2023. Justice Sugunasiri released an endorsement on November 17, 2023 finding that the remedy of striking the Answer was not warranted in light of the fact that, by the time of the motion, the Mother was in substantial compliance with the outstanding disclosure orders, and what was outstanding was minor. Instead, Her Honour found that the “better remedy pursuant to Rule 1(8) is to award full indemnity costs to the Applicant and an order requiring the Respondent to provide the remaining outstanding items.”

[17] In an order dated June 13, 2023, Justice Faieta gave leave to the Father to bring this motion. The Father has been trying to secure the Mother’s consent to a sale of the matrimonial home for about four years.

[18] The Mother works full time for the Canada Revenue Agency (“CRA”). She has sold three properties since the date of separation, over which the Father has made claims in the family law proceedings.

[19] The Father only works intermittently due to an alleged anxiety disorder arising from this litigation and various stresses he attributes to the Mother’s actions. He was arrested on August 7, 2021 when he returned to Canada from Morocco, where he had been responding to family law proceedings stemming from the Mother’s allegations of three historical sexual assaults against him dating 2009, 2011, and 2014. These charges were withdrawn by the Crown.

[20] The Father states he is a general labourer.

[21] The Father submits that he will not owe any retroactive child support or equalization payment, as he is only working intermittently due to his alleged disability. He points out that the Mother is a salaried employee with the CRA earning about $87,000 a year, including child tax credits, and is entitled to a pension from her employer. In contrast, he does not have an employment pension. He has been living in a basement apartment, while the Mother has lived in the matrimonial home for over four years with the children (and other family members on the Mother’s side). He proposes that the house be sold, each party receive $50,000, and the balance be held in trust pending trial. He submits the remaining equity will amount to about $500,000, which is more than enough to protect the Mother’s claims equalization and support claims.

[22] The Father claims that the Mother is using NK’s autism as a “smokescreen for not selling the property.”

[23] The Mother has resisted the Father’s motion and his past attempts to persuade her to sell, largely because it would disrupt the children, and particularly NK who, she claims, does not like changes and finds safety and security in his own bedroom. Furthermore, she hopes to purchase the Father’s interest in the matrimonial home after the issues of equalization and support are resolved at trial; she seeks to set off any amounts owing to her against the Father’s equity interest in the home.

[24] The Mother will be asking the trial judge to impute an income to the Father based on the average earnings of an electrician, which she estimates to be around $60,000 a year.

[25] In Her Honour’s endorsement dated October 25, 2021, Justice Kraft suggested that the parties obtain an appraisal of the matrimonial home to facilitate discussions regarding the Mother’s desire to buy out the Father’s interest. The Father obtained a “letter of opinion” and provided it on January 7, 2022. The Mother also obtained a “letter of opinion” on January 25, 2022. The respective values were very close, ranging between $1.175 million and $1.25 million.

[26] In Justice Davies’s endorsement dated September 23, 2022, it was noted that “Mr. Kamil wants the residential home sold. Ms. Bouchir wants to buy Mr. Kamil’s interest in the matrimonial home so she and the children do not have to move. If Ms. Bouchir wants to buy Mr. Kamil’s interest in the matrimonial home, she must make a detailed offer in writing to Mr. Kamil immediately”. No such detailed offer was ever provided.

The Law

[27] It is trite law that a joint tenant has a prima facie right to an order for partition and sale of a matrimonial home under the Partition Act, R.S.O. 1990, c. P.4. The court will generally grant such an order 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: Kaphalakos v. Dayal, 2016 ONSC 3559, at paras. 17-20.

[28] The equalization scheme set out in Part 1 of the Family Law Act does not oust the court’s jurisdiction to order a sale under the Partition Act. However, in the face of an equalization claim, the order for the sale of a matrimonial home should not be made as a matter of course: Stafford v. Rebane, [2004] O.T.C. 898 (S.C.), at para. 30.

[29] Furthermore, in the context of family law proceedings, the court may exercise its discretion to deny a sale of a matrimonial home where the sale would prejudice the one party’s claims under the Family Law Act or the sale would not be in the best interests of the child: Stafford, at paras. 29-31; Fernandes, at paras. 19-21; Lall v. Lall, 2012 ONSC 5166, at para. 49.

[30] The onus of proof is on the Mother, as she is seeking to resist the order.

[31] The Mother relies on Fernandes for the proposition that providing there is a reasonable prospect that a sale of matrimonial home will “prejudice the health of the child”, the court should deny the motion: at para. 20. However, in Fernandes, the Divisional Court had the benefit of expert opinion evidence for its finding that the child’s health in that case would be adversely impacted.

[32] The Mother also relies on Yeates v. Yeates. In that case, the trial judge granted the mother exclusive possession of the matrimonial home for three years from the date of judgment to allow one of the children to finish school and to keep the vulnerable child (both had medical problems) in a familiar space. However, it was not disputed that two of the children had severe disabilities (epilepsy and cerebral palsy in the case of the eldest, causing her to be “severely handicapped”, and autism in the case of the other, causing social challenges at school and in the community): at para. 3. The third child also had special needs because of the difficulties experienced by her siblings. The mother had to stay at home full time to look after the children. Hence, she had no income other than government benefits and support from the father. The court found that the s. 7 expenses required to meet the needs of the children, beyond those recoverable through insurance and government benefits, were substantial. There was also little equity in the matrimonial home, around $225,000. The court found that the mother would not be able to buy a comparable bungalow, and the parties had limited financial resources between them.

[33] Yeates was not focussed on whether a sale of the matrimonial home, forcing the children to transition to a new home, would have a detrimental impact on their health. Furthermore, the court had expert opinion evidence in the form of medical reports (admitted into evidence on consent without the need to call the treating doctors to testify), justifying the exclusive possession order for a period of three years.

[34] The Mother also claims that the Father will owe retroactive child support, particularly if she is successful in imputing income to the Father (as his line 15000 income is very modest), and an equalization amount in her favour.

[35] The Father relies on Marchese v. Marchese, 2019 ONCA 116, at para. 5, where the Court of Appeal for Ontario confirmed that the respondent joint tenant had a “prima facie right to an order for the partition and sale of the matrimonial home.” The court upheld the trial judge’s decision ordering the sale, notwithstanding the fact that the mother and three children lived there and had done so for six years.

[36] The Father also relies on Bailey-Lewis v. Bailey, 2020 ONSC 7525. In that case, the court granted a motion for partition and sale of the matrimonial home prior to trial, in part, as there was no evidence establishing that the child of the marriage was either vulnerable or that the sale would have “significant disruptive effects on him”: at para. 19.

[37] However, in Bailey-Lewis, the court also observed that a matrimonial home should not be sold in advance of trial if to do so would jeopardize the claims by a spouse made under the Family Law Act or a court order. The court, at para. 20, also held that an order for the sale of a matrimonial home prior to trial, in these circumstances, should not be made as a matter of course.

The Evidence

[38] Two of the children, including NK, go to the Ronald Marion French Public School in Pickering, while the third child goes to Academie Alexandre Dumas in Toronto. Neither of the schools are in the catchment area of the matrimonial home.

[39] Furthermore, NK’s summer camp at Surrey Place (a treatment facility in Toronto for persons with, among other challenges, developmental challenges and autism spectrum disorder) is not in the catchment area of the matrimonial home. NK is provided with bus transportation to both his school and Surrey Place.

Sale of the Matrimonial Home – Alleged Prejudice to the Mother’s FLA and Divorce Act Claims

[40] The issues regarding the sale of the matrimonial home have been the subject of three conferences held on October 25, 2021, January 31, 2022, and September 23, 2022. As stated, each party obtained letters of opinion regarding the value of the matrimonial home, which was appraised between $1.175 million and $1.25 million. The letters of opinion are somewhat dated, as they are from late 2021 and early 2022, respectively.

[41] The Father deposes that after separation, he found out that the Mother acquired three properties during the marriage with her business partner. The Mother has disposed of these three properties. The Father claims that the properties were financed using equity from the joint line of credit which is secured against the matrimonial home. He estimates that the Mother earned over $100,000 from these properties.

[42] The Father further alleges in his affidavit that he was ousted from the matrimonial home on October 24, 2019 after returning from a job in Kingston, Ontario, only to find his belongings in garbage bags in the garage and the Mother’s son (from a prior relationship) and sister present to ensure he not re-enter the home. The police were called, and he was advised to leave in order to avoid further conflict.

[43] The Father alleges that the Mother’s mother, sister, and her son from a prior marriage resided in the matrimonial home during marriage and that he contributed to the household expenses, such as the mortgage.

[44] The Father deposed that he initially paid $326 in monthly child support for a “few months”, based on the Federal Child Support Guidelines, SOR/97-175. He claims that in 2021, he began suffering from ailments because of the stress of this proceeding, he is seeing a psychiatrist, and his income has greatly reduced as a result.

[45] In his reply affidavit, the Father lists his reported income. Based on his notices of assessment, the Father’s 2016 income was $34,582; his 2017 income was $36,794; his 2018 income was $18,372; his 2020 income was $40,792; and his 2021 income was $11,352. The Father claims his reported income for 2019 was $19,181.50 (but is unable to produce a notice of assessment due to a problem at the CRA).

[46] Based on the Father’s DivorceMate calculations, reflecting the Mother’s annual income at $77,078 and his income at $17,592, the Mother would owe him spousal support of $646 per month (mid-range).

[47] The Father’s Working Form13B Net Family Property Statement, unsigned and undated, but attached to his affidavit, lists the value of the matrimonial home at 1.2 million (with 50 percent ownership valued at $600,000). According to this “without prejudice” statement, he claims that the Mother owes him an equalization payment of $27,242.91.

[48] The Mother claims in her affidavit that the Father left the matrimonial home voluntarily; he was not ousted. She further alleges that the incident giving rise to him leaving on October 24, 2019 was a shouting argument, wherein the Father called the police alleging her son from a prior relationship was threatening to assault him. She deposed that the police advised him to leave to avoid further conflict, and he left.

[49] She deposed that she has exclusively paid for the carrying costs of the home throughout the marriage and since separation, with no contributions at all from the Father. She relies financially on her mother and sister to assist with these costs and for day-to-day living expenses.

[50] The Mother deposed that the Father paid $326 in monthly child support from January to April 2021, and then for August and October 2021. She states that in 2022, the Father’s reported income on his sworn financial statement was $35,000, translating into a child support obligation of $718 per month. However, he has made no other support payments.

[51] In the Mother’s financial statement sworn February 9, 2023 and attached to her affidavit, she list her housing costs at $3,749.13 per month for their four-bedroom home ($3,362 for mortgage and the balance for utilities). The Father is not contributing to the mortgage payments. She lists her employment income as $6,178.19 per month and child tax benefits at $1,105 per month, for a total annual income of $87,398.22. As stated, she is a salaried employee with the CRA.

[52] She lists her annual expenses at $211,788.32 per year. She lists the value of the matrimonial home on valuation date at $850,000, and today at $1,070,000.

[53] In the Mother’s Form 13B Net Family Property Statement attached to her affidavit, she lists the value of the matrimonial home at $1,200,000 and attributes $600,000 to each party. She includes the three properties that the Father says she owned and disposed of as her assets, attributing the same value to them as the Father does. She claims the Father owes her an equalization payment of $58,130.78.

[54] She deposed that the Father is a flight risk, as she has uncovered deposits into his Moroccan account totalling $131,068 from 2014 to 2019, excluding 2018, as she has not been able to access statements for that year.

[55] At trial, the Mother intends to request that the trial judge make a lump sum award for child support from the Father’s share of the equity in the matrimonial home. The mortgage is approximately $390,000, and the home equity line of credit is $111,500. Therefore, she states that the net worth of the home is approximately $698,500, and the Father’s presumptive 50 percent share would be about $349,250, without taking into account the disposition costs. She further claims that he owes her an equalization payment and child support, which should then be deducted from his share of the equity.

[56] More specifically, she claims that on the basis of an imputed income of $60,000, the Father would owe child support of $1,192 per month. Based on her claim of a minimum of 10 years of support, this would total $143,000 as a lump sum payment. She submitted that deducting $143,000 as a lump sum child support payment, and the equalization payment of $58,130.78, from $349,250, the Father’s estimated net share of the equity, would make it easier for her to buy out the Father’s interest in the matrimonial home.

[57] I am not persuaded that the sale of the matrimonial home will prejudice the Mother’s claims under the Family Law Act or Divorce Act. Based on her version of the amounts allegedly owed by the Father, her position can be adequately protected by requiring the majority of the sale proceeds to be held in trust. If there is equity in the matrimonial home of about $700,000 (based on the respective letters of opinion), and the Father owes approximately $205,000 (plus costs and prejudgement interest) in lump sum child support and an equalization payment, as claimed by the Mother, the Mother’s claims will not be prejudiced if the majority of the net sale proceeds are held in trust, as proposed by the Father. I am alert to the fact that there may be s. 7 expenses as well, but the Mother did not provide me with any of these figures. The Mother did not raise spousal support either. It is acknowledged that even if income is imputed to the Father in the sum of $60,000 a year, the Mother still makes more than he does.

[58] Accordingly, this ground for denying the Father’s motion fails.

Sale of the Matrimonial Home – Alleged Prejudice to NK’s Mental Health

[59] In her original affidavit, the Mother describes NK as “severely autistic”, requiring “extensive services.” She deposed that NK exhibits aggression and attached a student behaviour report showing NK was hitting his sister and not obeying the bus driver in September 2015. She has obtained occupational therapy for NK to address his aggression.

[60] She also describes services she has obtained for NK, such as a summer camp at Surrey Place in July 2023. The Surrey Place record attached to her affidavit does not address a diagnosis or any specific vulnerabilities other than behavioural management issues. NK is currently supported by a detailed individual education plan, has an educational assistant who assists with individual teaching behavioural management, a speech and language pathology team at the school, and an occupational therapy team at his school.

[61] The Mother receives funding from the Ontario Autism Program to connect NK with further supports in the community, including Applied Behaviour Analysis therapy.

[62] She states that one of the sensory strategies is to reduce sensory overload and develop a consistent routine. She believes that an important part of this sensory strategy is that NK maintain his own bedroom, which he has had since birth. She says that he is unable to share a room given his sensory overload issues, he is particularly sensitive to sounds, and to “change his residence would be a great source of stress for him and lead to him regressing.”

[63] She attaches a letter from NK’s new pediatrician, Dr. Barootes, to her affidavit as an exhibit, which confirms NK’s current supports at his school and the fact the Mother has obtained funding from the Ontario Autism Program. The letter does not contain any opinions other than confirming his diagnosis of autism spectrum disorder, which is undisputed.

[64] In her subsequent affidavit, sworn October 13, 2023, the Mother attached an updated letter from Dr. Barootes dated September 25, 2023 and addressed to NK. The letter sets out a summary of NK’s current medical care. However, the letter also sets out a number of diagnoses, including autism spectrum disorder, generalized anxiety disorder, and social and learning difficulties. She opines that he is at risk of depression.

[65] Dr. Barootes’s diagnosis is opinion evidence, except to the extent conceded as true and accurate (i.e. the diagnosis of autism spectrum disorder). Dr. Barootes’s disputed opinions are inadmissible, as she has not sworn/affirmed an affidavit affirming the contents of her letter to be true. The Mother did not serve a notice under s. 52 of the Evidence Act, R.S.O. 1990, c. E.23. She also did not serve a notice under the business records provision of the Evidence Act, s. 35, relating to the facts stated in this letter and, in any event, Dr. Barootes’s letter was clearly written for this litigation at the Mother’s request and would not qualify as a business record. The letter is therefore inadmissible. Rule 14(9) of the Family Law Rules, O. Reg. 114/99, regarding affidavits sworn/affirmed on the basis of information and belief, does not permit an expert’s opinion, be it a participant expert or a litigation expert, to be adduced through a party’s affidavit. Rather, the expert must swear or affirm their own affidavit and be produced for cross examination if requested (at the hearing if necessitated by urgency, and as provided for by r. 14(17) with the court’s permission). The proposed expert opinion evidence must comply with r. 20.1 and r. 20.2 of the Family Law Rules – even on a motion.

[66] Even if the contents of this letter were admissible, it does not address the likely impact, if any, of NK moving to a new home. It references that NK has difficulties with transitions, but states that “a change in schools would be especially disruptive to him”.

[67] The focus of the Mother’s second affidavit is a summary of incidents that occurred following hearing of the oral portion of this motion. She deposed that on October 6, 2023, NK punched his teacher.

[68] Subsequently, on October 10, 2023, NK climbed onto the window ledge in his school classroom and attempted to jump from the third floor. He had to be restrained and ultimately was removed from the ledge safely, with only a minor injury to his foot. The Mother attached the school incident report describing this incident. The incident report does not indicate what prompted NK’s action - only that he was resistant and kicked one of the teachers trying to calm him. NK is not permitted to return to school until he has medical clearance. It is unknown at the time of this decision whether he has returned to school.

[69] The Mother immediately took NK to the hospital after this incident. She attached a copy of the hospital report. It does not indicate any reason why NK tried to jump out of the window.

[70] The Mother also attached an email from the school social worker dated October 12, 2023, advising that the social worker has requested a counsellor from the Ontario Autism Program urgent support team to contact her or the Mother to provide NK with any necessary assistance.

[71] The Mother also attached as an exhibit a psychoeducational assessment, dated September 21, 2023, prepared for NK. Again, this assessment report contains opinions which are not properly entered into evidence through the Mother’s affidavit. In any event, it does not provide any commentary about the possible impact on NK were he required to transition from the matrimonial home to a new home.

[72] The Mother’s view, as expressed in her most recent affidavit, is that NK has been “particularly angry lately” because he “knows that the family may have to move which has upset him tremendously.” She adds that NK will not allow anyone to clean his room or do anything else in his room without his permission, and that he is “extremely territorial over his room and does not want to give it up.” She also deposed that NK was upset at the material time because he perceived that the Father told him and his siblings that he could not meet with them at this time.

[73] The Mother’s view is that the stress NK experienced as a result of knowing he might lose his bedroom “cumulated into a suicide attempt given NK’s inability to manage stress.”

[74] The Mother also deposed that she was unable to retain an independent expert to assess NK in time for the extended deadline for this motion.

[75] The Mother has failed to demonstrate in the evidence that there is a reasonable prospect that the sale of the matrimonial home in advance of trial will adversely impact NK’s health such that it would not be in the best interests of NK to move from the matrimonial home. The reasons underlying the incident of punching his teacher and of attempting to jump from the classroom window are not grounded in any expert medical evidence. The exhibits attached to the Mother’s affidavit do not support her theory, including the opinions contained therein, even if they had been admissible. Rather they are based in the Mother’s belief. Furthermore, the Mother blames the Father’s alleged rejection of meeting with NK as a possible reason underlying his anger and precipitating his actions.

[76] Of concern to the court is that the Mother may have told NK after the motion that she might have to sell the house. If so, this would suggest a bad parenting decision, particularly if the Mother did not have a plan in place to deal with NK’s potential anger-based response to such news. I am not making a finding on this point, as I have insufficient evidence. However, the Mother must have a therapeutic plan in place before telling NK of the pending sale of the matrimonial home in order to help NK manage the news and transition to a new home safely. It is apparent that NK is already receiving supports to deal with his behavioural challenges, but he may need additional supports or a new strategy to deal with the sale of the matrimonial home. I will return to this at the conclusion of my Reasons.

[77] There is no dispute that NK lives with autism, and the evidence establishes that he had a recent episode at his school whereby he tried to jump out of the window. There is also no dispute that NK suffers from longstanding behavioural management issues that may be prompted by anger, stress or, as the Father suggests, a lack of sleep.

[78] It is a fair inference that none of NK’s existing treating health care professionals, including Dr. Barootes, were able to provide opinion evidence relating to the potential impact on NK’s mental health of having to leave the matrimonial home with his Mother and siblings. Dr. Barootes, in particular, did have time to prepare a report following the motion, but did not address this critical issue which was the rationale behind granting the Mother an extension of time to adduce expert evidence.

[79] Furthermore, it appears that NK’s main therapeutic routine is going to his school with all the professional supports and services that are in place for him. As stated, his school his located outside the catchment area of the matrimonial home, which is located in Scarborough. He is bussed to his school, and there is no basis in the evidence that moving from the matrimonial home will alter his school routine. Such a move should also not interfere with NK’s ability to attend Surrey Place again this summer if that is the intention.

[80] The Mother has not persuaded me on the current evidentiary record that a sale of the matrimonial home will put NK’s mental health at material risk of deterioration or harm.

[81] Furthermore, the flaw in the Mother’s argument concerning the prejudice to her claims is that she is effectively arguing that she deserves to have a lump sum determination of support based on imputed income and the equalization claim resolved at trial so that she may then, hopefully, have enough funds to purchase the Father’s interest in the matrimonial home. There is no entitlement under the Family Law Act for one spouse to buy out the other spouse’s interest in the matrimonial home. The Court of Appeal has also discouraged the vesting, by judicial order, of any right of first refusal for a spouse to purchase the matrimonial home: Martin v. Martin (1992), 8 O.R. (3d) 41 (C.A.). In any event, it is uncertain as to whether a trial result will be sufficient for the Mother to buy out the Father’s interest in the matrimonial home.

[82] On the other hand, I am satisfied that the Mother’s claims for support and equalization will be more than adequately protected if I make the order requested by the Father directing that after the distribution of $50,000 to each of the parties, the balance of the net sale proceeds are to be held in trust pending further court order or mutual agreement of the parties.

[83] Furthermore, the Mother has effectively had exclusive possession of the matrimonial home for about four years, and, despite indications that she intends to purchase the matrimonial home, has not made any detailed offers. On the other hand, the Father has been struggling financially and deserves to have access to some of the eventual net sale proceeds prior to trial.

[84] For all these reasons, I am ordering the sale of the matrimonial home but delaying closing to the end of this school year.

[85] The reason why I am delaying the closing date for the sale of the matrimonial home until June 30, 2024, is in recognition that NK has recently suffered a traumatic incident of attempting suicide, and that the main source of his professional supports and routine is attending his school. It would be particularly disruptive to NK to have to move homes during the course of his school year. However, with this advance notice, the Mother should be able to put into place a strategy and treatment plan as to how to manage telling NK about the move and then facilitating the move includes involving his school supports and obtaining any additional supports he may need to manage his emotions and behaviour during this transition. It may be that NK will attend Surrey Place again this summer, and that facility can likely also assist in reinforcing any new strategy and treatment plan.

[86] It would also be disruptive for the other two children to have to move prior to the conclusion of the school year, and it is less than four months away from the school’s year end. This result is in the best interests of the children, and particularly NK.

Disposition

[87] The matrimonial home will be listed for sale within the next 60 days on the following terms:

(a) The parties shall select a lawyer with experience in handling residential real estate transactions and jointly retain this lawyer to take carriage of this transaction within the next 30 days.

(b) The parties shall select a realtor who has experience listing properties in the matrimonial home’s neighbourhood within the next 30 days.

(c) The realtor and real estate lawyer will be provided with a copy of the Order reflecting these terms.

(d) The parties shall enter into a listing agreement with the selected realtor.

(e) The parties shall follow the advice and recommendations of the realtor with respect to the listing and sale of the matrimonial home within the confines of this Order.

(f) The parties shall follow the advice of their realtor in soliciting and comparing offers, and shall follow the recommendation of their realtor in terms of acceptance of any offers they receive.

(g) The matrimonial home shall be sold “as is”, subject to any minor cleanup or touch ups. If not included in the work to be done and paid for by the realtor, then this cost shall be shared equally between the parties and deducted from the net sale proceeds.

(h) Closing will not be earlier than June 30, 2024.

(i) The parties will sign all necessary documents to facilitate the acceptance of the realtor’s recommended offer and closing.

(j) The Mother shall have exclusive possession of the matrimonial home until closing but will cooperate by following the realtor’s advice regarding absences required for showings.

(k) In the event that there are any disputes arising from the implementation of the terms of this Order, either party may bring an urgent motion on two days’ notice.

(l) In the event that there is any clarification of this Order required, or the parties cannot agree upon a realtor or real estate lawyer, the parties may seek a case conference before me, and I will ultimately select a realtor and/or real estate lawyer.

[88] After payment of all encumbrances and realtor and legal fees, the net sale proceeds shall be held in trust by the real estate lawyer with carriage of this transaction. The real estate lawyer shall disburse $50,000 to each of the two parties (totalling $100,000) from the net sale proceeds. The real estate lawyer is also authorized to disburse such other amounts as may be directed by the parties on mutual written consent, without the need for a further court order. Otherwise, the real estate lawyer shall hold the remaining net sale proceeds, after the $100,000 disbursement, pending further order of this court.

[89] The Order is without prejudice to the Mother’s ability to tender a competing offer which is better than the offer recommended by the realtor. This Order also does not prevent the Mother from negotiating a purchase price with the Father. This is not, however, a right of first refusal.

Costs

[90] The parties should settle the costs. However, if they are unable to, then the Applicant will deliver his cost outline and written submissions within ten days from the release of this decision, and the Respondent shall deliver her cost outline and written submissions within ten days thereafter. The submissions shall not exceed three pages, double spaced, each, and will be delivered through the JSO to my attention along with the cost outlines.

Justice S. Vella

Released: March 01, 2024