Court File and Parties
COURT FILE NO.: FS-23-00107680-00 DATE: 2024 09 03
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: A.A.T, Applicant -and- A.O.T., Respondent
BEFORE: RSJ E.R. Tzimas
COUNSEL: J. Mukongolo, Counsel for the Applicant Email: jane@jnmlaw.com R. Buhari, Counsel for the Respondent Email: rabab@aplawyers.ca
HEARD: August 29, 2024
ENDORSEMENT
[1] The Applicant brought a motion for an order that the parties’ daughter, M.T. be registered at her former school, Ingleborough Public School immediately so that she may started Grade 8 there. She also sought an order that the parties cooperate for the sale of the matrimonial home on specific terms outlined in her Notice of Motion.
[2] The Respondent opposed the motion. In his view, his daughter should return to Havergal College (Havergal), where she went to school in the 2023-2024 school year. He did not believe that it would be in his daughter’s best interests to return to Ingleborough Public School (Ingleborough). On the sale of the matrimonial home, he says such a sale is premature; he would like more time to be able to buy out the Applicant’s share of the matrimonial home.
BACKGROUND
[3] The parties agree that they were married in Nigeria on October 2, 2007, and started residing together on December 20, 2007. They separated on or about March 1, 2023, though they still reside under the same roof. They have three children: M.T., born xxxxx xx, xxxx , T.O.L.T, born xxxxx xx , xxxx , and M.B.A.T., born xxxxx xx , xxxx .
[4] The Applicant is a casual worker working part-time as a night Personal Support Worker primarily in a long-term care facility, Bennett Village and occasionally, through an employment agency called Helping Hands. She is a foreign trained teacher who graduated from an Nigerian university. As of July 29, 2024, she commenced an online bridging teaching program offered by Brock University. The second course will start on September 20, 2024. In her Financial Statement, the Applicant reports a total annual income of $34,109.40.
[5] The evidence concerning the Respondent’s employment and income was limited. The Applicant reported that the Respondent earns an income of $121,320.00. Apart from saying in his affidavit that he brings M.T. to Toronto and brings her back to Brampton, the Respondent did not provide any particulars concerning his employment, such as where he works, what he does, whether he works at a location in Toronto or from home, his working hours, his income, and travel requirements for his work.
[6] Regarding M.T.’s schooling, the parties agreed that prior to their separation in 2022 they decided jointly to enrol their daughter at Havergal.
ISSUE ONE: An Order for M.T. to Return to Ingleborough Public School from Havergal College
i. Parties’ Evidence
[7] The Applicant gave several reasons for which it would be in M.T.’s best interests to return to Ingleborough. The Applicant and the Respondent were not separated when they selected Havergal for their daughter. They chose the school for its prestige and academic excellence, but they did not work through the practical logistics associated with their daughter’s attendance there. M.T.’s attendance for Grade 7 surfaced several difficulties and challenges. The parents’ separation and the disruption associated with it compounded those difficulties and raised serious questions concerning the continued viability of M.T.’s attendance at the school. In sum, M.T.’s continued attendance at Havergal will be unsustainable.
[8] The distance between Havergal, which is located in Toronto, and Brampton, where the family currently lives, is approximately 45 km. That means that M.T. faces on average a commute of one hour and fifteen minutes each way. To get to school for an 8:30 a.m. start time, M.T. must wake up at 6 a.m. and be on the road by 7:15 a.m. or so. At the end of the day, she does not return home before 5:30 p.m., and frequently later than that if she had extra-curricular activities. This routine proved to be exhausting for M.T.. She came home tired and had difficulties completing her homework. In contrast to those challenges, her return to Ingleborough would allow her to sleep longer and return home much earlier than 5 or 6 p.m.
[9] The school’s distance from Brampton also impacted the Applicant’s ability to participate in the Havergal school community. The Applicant’s responsibilities for the other two children, her night work schedule, M.T.’s commuting schedule, and the school’s distance meant that the Applicant could not attend at the school to meet with M.T.’s teachers, she could not attend school functions and events to be part of her daughter’s school experiences, and she could not assist M.T. with her homework.
[10] M.T.’s routine also proved to be disruptive to her relationship with her sisters. By having to wake up an hour before her sisters, she had to go through her morning routine alone. In the Applicant’s view, especially given the parents’ separation and the uncertainties and insecurities created by those circumstances, the Applicant submitted that the girls needed each other’s support. It is important that they wake up together, walk to catch the school bus together, and return home together. This is how it was when M.T. attended Ingleborough. M.T.’s return to Ingleborough would restore stability and security for all three girls. This is a crucial consideration for M.T.’s emotional well-being.
[11] The Applicant also explained that M.T.’s specific commuting needs would effectively undermine the drop-off and pick-up to school for the three daughters contemplated by the parties’ agreement to have a week about parenting schedule. For the time being, with both parents still living under the same roof, the schedule had yet to be implemented and therefore the Respondent could bring M.T. to Toronto, and the Applicant could drop-off the other two daughters. However, when the parties move to separate residences, the week about arrangements would impact the school drop-off in the mornings.
[12] If all three children were to attend Ingleborough, then the parent with whom the children were with for that week would take care of the drop-off. But if M.T. were to continue attending Havergal, regardless of the week about arrangements, the Respondent would have to bring M.T. to school in Toronto and the Applicant would be responsible for drop-off for the other two daughters. Whereas with a week about schedule, the Applicant could arrange to be at home on her weeks and manage school drop-off accordingly, if she had to drop-off her daughters on a daily basis, independent of where the daughters were staying, that requirement would have a serious impact on her work schedule.
[13] Also related to transportation, the Applicant noted that the Respondent travels for work and would not be able to take care of the children’s transportation when he is away. As long as everyone is under the same roof, the Applicant is able to manage the children’s transportation needs. But once they begin to live under separate roofs, the Applicant would not be able to compensate for the Respondent’s absence because of her responsibilities to care for the two younger children, her work schedule and her school.
[14] In the event of a medical or other emergency at school, the Applicant highlighted her inability to get to Havergal in a timely manner. Nor could they count on any community support from friends or relatives because none lived close by to Havergal. Were there to be an emergency at school, the Applicant would need over an hour to get to Havergal. By comparison, Ingleborough is a 10-minute drive away and the Respondent’s brother and his wife are only a two-minute drive away.
[15] Separate and apart from the foregoing difficulties, the Applicant’s most pronounced concern rested with M.T.’s indication that she was not happy at Havergal. The parties agreed that although a Voice of Child Report was ordered by the court in its endorsement of June 7, 2024, the Office of the Children’s Lawyer advised on June 14, 2024 that due to its limited resources, such a report could not be provided. The letter was not produced for the court’s review.
[16] According to the Applicant, on July 18, 2024, M.T. sat her parents down and told them that she did not want to return to Havergal. She talked about her mood swings, irritability, and fatigue. She was tired of having to wake up early and come home late. She told them she felt inferior at school, she had no friends, there was no time to socialize with her classmates, she would eat alone on most days, and she used her one-hour break at lunch to finish homework or seek out help from her teachers for subjects with which she struggled, especially math. She added that she was not able to bond with her classmates because “all the girls already have their friends from the same ethnicity”. M.T. explained that some of the girls had been together since grade one and that by living in the same neighborhood in Toronto, they sealed their friendships. Finally, she complained about not being able to participate in extra-curricular activities, that her relationship with her sisters was negatively impacted, and that she missed her friends from Ingleborough.
[17] Against the sum of these concerns, the Applicant concluded that it would be in M.T.’s best interests to return to Ingleborough, which was a good school and would continue to support M.T.’s overall development. M.T. would return to her friends, she would restore her relationship with her sisters, and she would return to a supporting school environment, where she would continue to thrive. For high school, she would then go with her cohort to the local high school. She would not be confronted with feelings of inferiority, and emotional unhappiness.
[18] The Respondent disagreed with the Applicant’s concerns. Although he did not dispute the July 18 exchange with M.T., he said that in his own conversations with her, she told him that she was happy at Havergal. She was happy to make new friends and to have new and diverse experiences. Her friends were amazing and her grades were excellent. He did not believe that M.T.’s emotional well-being was being impacted and he underscored his desire to offer the best he could for his daughter.
[19] The Respondent praised the quality of the school and produced a photograph from a school concert, showing M.T. to be smiling. He also highlighted for the court the medal that M.T. won in track and field, and generally underscored the fact that M.T. excelled at Havergal. In his view, M.T. has been thriving at Havergal. The school sets her apart and will give her a leg up in life.
[20] The Respondent said that his daughter was late on “on very few occasions”, but he indicated that this clearly did not affect her academic prowess. He acknowledged that “unfortunately, there are some days where lateness is unavoidable as a result of traffic, but this has only occurred very rarely and even at the time it has occurred, she has simply been 5-10 minutes late”. The Respondent also justified the situation by indicated that there were instances when he also had to drop off the other two children because the Applicant was unavailable. He was critical of the Applicant for not acknowledging his competing obligations.
[21] As for emergency situations or his unavailability to pick up his daughter, the Respondent said that in the past year, they did not encounter any difficulties. On one occasion, when he could not pick up M.T., he arranged for an Uber to drive her home. He kept a virtual eye on the vehicle and M.T. got home safely. Regarding his travels for work, he said there were only two occasions when he was away and that in one instance, he had his niece pick up M.T. from school. As far as the Respondent was concerned, this was a non-issue.
[22] The Respondent disagreed with the Applicant’s suggestion that M.T.’s attendance at Havergal impacted negatively on their relationship. He said that the other daughters were younger, they had their own interests and friends, and that there is plenty of time on the weekend for the sisters to maintain their relationship.
[23] The Respondent also disputed the suggestion that he did not have any contact with the school or M.T.’s teachers, and that his interactions with the school community were limited to drop-offs and pick-ups. He said that he met with the teachers regularly and was involved with the school.
[24] Speaking of his going forward plan, the Respondent stated in his affidavit the following: “My plan is to continue with picking and dropping off [M.T.] at Havergal and for the Applicant to transport the younger children to and from school and then each parent drops the children off with the parent that they are having parenting time with.”.
ii. Applicable Law
[25] The applicable test to determine which school M.T. should attend is her best interests. Such an assessment must consider all the relevant circumstances as to her needs and the ability of each parent to meet those needs, guided by s.24(2) of the Children’s Law Reform Act, R.S.O. c. C-12, which states that, “In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”.
[26] Cases that have addressed school selection or school transfers have highlighted the following considerations:
a. A change in school requires evidence that such a change is in a child’s best interests: Perron v. Perron, 2012 ONCA 811, at para. 38.
b. The parent who wishes to disturb a status quo must meet a heavy onus of showing cogent and compelling evidence that the present arrangement is not in the child’s best interests: Miranda v. Miranda, 2013 ONSC 4704, at para. 26.
c. It is not the interests or rights of the parents that dictate the outcome of a decision. What may be most convenient for the parents is not, itself a determining factor, Gordon v. Goetz, [1996] 2 S.C.R. 27, at para. 49.
d. Proximity to a parent’s home is not the deciding factor. Of paramount consideration is the school that will give the child the best competitive advantage, or provide the greatest confidence and motivation, or that will facilitate the child’s relationship with others, including [her] parents and classmates, or best promote [her] all around development, McCutcheon v. McCutcheon, 2023 ONSC 6840, at para. 22, Hamid v. Hamid, 2016 ONSC 5013, at para. 13, and Schloegel v. McCroary, [2012] BCSC 1606.
e. The weight to be given to the views and preferences of children in school-change cases is the same that would apply in situations of a change in custody, parenting or living arrangements. The child’s wishes are not to be confused with their best interests, but where a child is a teenager, an order should reasonably reflect their wishes. The weight to be attached to any expression of preference depends on the facts and is a function of age, intelligence, apparent maturity, and the ability of the child to articulate their view: McCutcheon, at para. 23 and Stefureak v. Chambers, 2004 CarswellOnt 4244 (ONSC) at para. 64.
f. When considering the change of a school, each instance is very fact specific. Determining a child’s bets interests may include the assessment of any impact on the stability of the child. This may include examining how many years the child has attended his or her current school; whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; and whether a move will mean new childcare providers or unsettling features. The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling. Any problems with the present school will be considered.
iii. Findings of Fact and Application to the Law
[27] The determination of this issue presents the court with a number of challenges and concerns. Beginning with some positive observations and findings, I note the following:
a. Both parents love their children and are trying to do their best to respond to their best interests. Both parents recognize that M.T. is a very bright child and they would like to see her thrive.
b. Both parents agree that Ingleborough equipped M.T. with a very strong academic foundation. She excelled at Havergal because of that foundation.
c. Both parents were attracted to Havergal for its prestige and academic excellence. They wanted to give M.T. “a leg up”.
[28] The Applicant’s concerns with reference to M.T.’s commuting time, her inability to support her daughter with her homework, to communicate with M.T.’s teachers and to become part of the school community speak the Applicant’s concerns for M.T.’s overall and emotion well-being. Her submissions do not reflect any attempt to put her interests above those of her daughter. She reports on her concerns about M.T. being tired, being unhappy, and not having friends. These reported difficulties speak to the disruption caused to M.T.’s life as a result of her transfer to Havergal and corroborate the Applicant’s indication that they never considered the logistics associated with their daughter’s attendance at that school.
[29] The Applicant’s inability to be part of the Havergal school community because of her employment schedule, her distance away from the school and the need to look after the two younger children, is problematic. On the evidence before me, this family is of modest means. The Applicant must work; she did not stay away from Havergal just because of any disagreement with the Respondent. Clearly, she would have liked to see the school work out for M.T.. However, the logistical difficulties that they encountered are real and overwhelming. Unless there is some way to address those concerns, they are concerns that will impact M.T.’s well-being into the future.
[30] By contrast, in his evidence, the Respondent downplays the long commute and goes as far as to suggest that the Applicant’s concerns are exaggerated. He describes the 18 instances his daughter being late as only “a few occasions”, and in any event, he treats those late arrivals as no big deal. That said, his own evidence corroborates the Applicant’s concern that the commute time is a burden. As much as the Respondent was critical of the Applicant for overstating how much time M.T. spent on her commute to and from school, the Respondent confirmed that he and M.T. must be on the road by 7:15 a.m. or so to make it to school for an 8:30 a.m. start time. He did not disagree that M.T. must get up at 6 a.m. to be ready to leave at 7:15 a.m. And even then, there were numerous occasions when because of the traffic, they were still late.
[31] The Respondent also downplays the implications of a week about parenting arrangement and how he and the Applicant would balance M.T.’s requirements to get to school with the needs of the other two children. If the Respondent intends to take M.T. to school every day, whether or not M.T. is staying with him during his parenting weeks, how will the other two children get to school? His proposal, combined with the Applicant’s night shifts and schedule suggested to me that the plan has not been well thought-out and that M.T.’s future transportation would become the source for future disputes. It would be most unfortunate if the wrong decision on M.T.’s school became the excuse to unravel the parties agreement on the parenting for the three children.
[32] Turning to my consideration of the the status quo as the measure for making a decision, it would be stretching it to treat M.T.’s attendance at Havergal for only one academic year as the status quo. M.T.’s transfer to Havergal predated the parties’ separation by only a few months. The separation has been disruptive to the whole family. M.T.’s status quo was Ingleborough. The past school year at Havergal was the change; it gave the parties the opportunity to experience a new school and the actual logistics associated with the new arrangement. The Applicant is not proposing a move to a new school. M.T. would be returning to her old school, her friends, and her teachers. Viewed in this way, the decision concerning M.T.’s school attendance is not about changing the status quo, but rather about returning to the status quo.
[33] Stated differently, this is not a situation where M.T. would be transferred to a new environment. Havergal was a change that took place this time last year. The parties encountered difficulties. The question is whether the difficulties can be addressed and overcome, or whether it is in M.T.’s best interests to return to Ingleborough.
[34] Which brings me to the elephant in the room. The court is missing critical evidence concerning M.T.’s views and preferences, either directly through her or through school reports. Evidence concerning M.T.’s wishes is relevant and necessary. I do not understand why the Office of the Children’s Lawyer (OCL) would not be able to assist with a Voice of the Child Report. Neither party produced the letter from the OCL declining the assignment and therefore I cannot comment any further on that deficiency.
[35] The Respondent disagrees with the Applicant’s reporting of their daughter’s preferences but curiously, he does not say that the conversation on July 18, 2024 did not occur. The Respondent’s evidence is stated in broad terms and relies on a couple of pictures. But those pictures say nothing about M.T.’s emotional well-being. The picture of M.T. from the music concert may just be her looking up and being happy to see her father. The Respondent says that M.T. did make friends but offers no insight on how many they are, when M.T. sees them, or what kinds of activities they enjoy together.
[36] The Applicant’s concerns about her daughter’s emotional well-being offer some greater insights, but they too lack in specifics. What I find curious with the Applicant’s evidence is that she reports on the July 18 exchange but does not outline any other instances when M.T.’s emotional well-being might have come up. If M.T. encountered difficulties socializing and making friends, when was the first time that this came to the Applicant’s attention and what did she and the Respondent do about it? Did the parties consult the school or seek its support through the social services and counselling that the school might offer? Schools such as Havergal pride themselves for being concerned for their students’ emotional well-being; they recognize that a student’s well-being will underpin that student’s academic success. They also pride themselves on developing and promoting positive interpersonal relationships. They typically develop personalized tools and a support team for each student.
[37] Recognizing that the Applicant did not develop any relationship with Havergal, what, if any, interaction did M.T. and the Respondent have with the school in relation to her well-being? Was she supported with resources as described in the preceding paragraph? Did the school representatives review M.T.’s 18 late attendances with M.T. and her parents, and if yes, what strategies to address the situation were discussed? Did M.T. raise concerns about not making friends with the support team at Havergal, or were those resources not available? In the absence of a Voice of the Child Report, answers to these types of questions would have gone a long way to giving the court some greater insight into M.T.’s emotional well-being.
[38] In the same vein, what did M.T.’s teachers say about M.T.’s attendance and interaction with her peers in the report cards that would have been issued over the course of the year? Did those report cards offer any commentary or observations concerning M.T.’s well-being, her need for extra help, and her struggles with math, as suggested by the Applicant. Such evidence would have also assisted the court and could have gone quite some distance giving the court some insight on M.T.’s attendance at Havergal.
[39] The evidentiary gap is significant. Grade 8 is a critical year for a teenager’s overall development and M.T.’s emotional well-being is a critical component of a best-interests analysis. Under the best of circumstances, as they negotiate their own challenges, develop resilience and their own self-worth, 13-year-olds can be very tough on themselves and nasty to others around them. In that sense, the Applicant’s evidence about her daughter’s complaints is not entirely surprising. But the Applicant would have also been willing to leave M.T. at Havergal if the Respondent would agree to arranging for a residence closer to the school. That suggestion, even if the Respondent rejected it, is at odds with the Applicant’s concerns for her daughter’s well-being and her alleged inability to mix with her classmates because of her ethnicity. Living closer to the school would not resolve M.T.’s isolation, if that is in fact what lies at the source of M.T.’s unhappiness at the school.
[40] Finally, I have some concern that the Applicant’s wish for M.T. to return to Ingleborough, to some extent, may be tied to the week-about parenting schedule, to which the parties have agreed. Clearly, on the parties’ evidence, M.T.’s continued attendance at Havergal could impact the week-about arrangement. I cannot help but wonder whether the request for M.T. to return to Ingleborough is tied more to the parenting agreement and less to any concerns about her emotional well-being.
[41] Against that reality, the Respondent’s evidence to the contrary cannot be disregarded. The only way to reconcile the parents’ competing views is to obtain evidence of M.T.’s own preferences. By all accounts, M.T. is bright and intelligent young teenager. The decision of the court on where to go to school, should reasonably reflect her wishes. To ignore this evidentiary vacuum and to rush a decision would be irresponsible and contrary to M.T.’s best interests.
[42] To be clear, but for the missing evidence concerning M.T.’s own wishes, I would have been making an order that M.T. to be registered forthwith at Ingleborough and return there for grade 8 forthwith. Given the enumerated challenges, I am satisfied that it would be in her best interests to return to Ingleborough, where she would be reconnected to her teachers and friends. M.T. obtained a solid education there and there is no reason to believe that she would not thrive, as she did in the past. The school may not enjoy the prestige of Havergal, but there was no evidence before me to suggest that M.T.’s education would be compromised. By all accounts, Ingleborough is a very good school. It would also be in M.T.’s best-interests to be going to school within her home community and not having to contend with the long commute and all the challenges associated with it.
[43] However, I am unable to make such an order in the absence of being provided with robust and reliable evidence on M.T.’s actual wishes. Her preferences, even if they are not determinative, will be essential to my ultimate decision. To make that order, I will need to understand her preference and the reasons for that preference.
[44] I am most mindful of the fact that classes are due to being this week, though I do not know the specific first day of school. However, this motion was only heard on August 29, 2024, together with numerous other urgent motions. Everyone knows when school begins. The parties should have alerted the court as soon as the OCL declined to prepare a Voice of the Child Report and sought relief much earlier, to avoid this crisis.
[45] I have and will continue to do my best to arrive at a decision, but that cannot be rushed and it cannot be made with incomplete evidence. Accordingly, I make the following temporary orders:
a. Unless the parties are able to reach an agreement, a Voice of the Child Report or an equivalent that reports on M.T.’s preference is to be obtained and filed with the court by September 9, 2024. The parties may communicate with the OCL forthwith to renew their request for a Voice of the Child Report, to be expedited and produced by September 9,2024. Alternatively, they may obtain such a report privately. The costs of a private report are to be shared equally. In addition, or in the further alternative, they may provide the court with M.T.’s report cards, communications with the school, and any other evidence that answers the questions raised at paragraphs 36 to 38 of this decision.
b. As soon as the parties file the requested report and/or additional evidence, they are to upload it onto Case Center and add it to the August 29, 2024 Motion bundle. They are also requested that they confirm their filing with my judicial assistant at Barbara.Zablotny@ontario.ca so that I might review the materials. Each side may serve and file supplementary submissions in response to the Voice of the Child Report to provide the court with its specific views on the report. These supplementary submissions are to be served and filed together with the Voice of the Child Report, by September 9, 2024.
c. Upon receipt of the materials, I will review them and issue an order accordingly. It is possible that I may require a further court attendance, but that assessment is premature.
d. Until further court order, and unless the parties reach an agreement otherwise, M.T. will begin classes at Havergal. This direction is temporary and without prejudice to my ultimate decision.
ISSUE TWO: Sale of Matrimonial Home
i. Position of the parties
[46] The Applicant also seeks an order that the parties cooperate for the sale of the matrimonial home in accordance with sections 9(1)(d), 10(1)(c ) and / or 21 and 23(b) of the Family Law Act, and section 3(1) of the Partition Act. She contends that there is no justification for delaying the sale of the home. She has been waiting for the Respondent’s cooperation for 17 months. She has also given the Respondent 17 months to allow him to buyout her share. However, it has become apparent to her that the Respondent will not be able to afford a buyout and accordingly, the Applicant would like to sell the home so that she might buy another home that is suitable for her and her children.
[47] The Respondent opposes the requested order. In his view the sale of the matrimonial home is premature. He continues to be speaking to private lenders to obtain financing to buyout the Applicant. In her submissions counsel for the Respondent suggested that the parties would be able to get a better price for the matrimonial home if they were to put it on the market a few months from now.
[48] In his affidavit, the Respondent expressed concerns about why the Applicant would insist on a 3rd party arms length transaction and why she would resist his purchase of the home. Insofar as the Applicant indicated that she wanted to move on with her life and not remain under the same roof, the Respondent submitted that she could go ahead to rent accommodations with the sum of $83,000 that he paid her. In his view: “the Applicant’s main concern is physical separation. With the amount that she has been given and the fact that she is currently not paying much towards the bills, she should be able to rent a place or place a down payment on a home or condominium. She however refuses to do this for reasons that are unclear. … The Applicant is seemingly dedicated to want to continue to change a lot of things for the children, firstly the school of the oldest child and then them losing their home”.
[49] The implication of the Respondent’s position is that he would like to keep the matrimonial home if he can so as to minimize the disruption to his daughters’ lives; they would continue to live there on their week about weeks with him. The Respondent did not provide any other evidence to explain the reasons for his resistance to the sale of the home.
[50] There is no dispute between the parties that the Applicant owns the matrimonial home. There is also no dispute that the Respondent would be entitled to a 50% share, subject to equalization.
[51] The Applicant says that her value of the matrimonial home is in the range of $1,350,000 to $1,375,000. The Respondent says that his appraisal suggested a value of $1,290,000.
ii. Applicable Law
[52] Numerous cases have reviewed the law applicable to the same of a matrimonial home. The guiding principles are summarized in Dhaliwal v. Dhaliwal, 2020 ONSC 3971, and R.L. v. M.F. 2022 ONSC 1677. In a nutshell, a property owner has a prima facie right to sale, see Goldman v. Kudeyla, 2011 ONSC 2718. But that principle is subject to greater discretion when the court is dealing with a matrimonial home, especially when the request is made at an interim, rather than trial stage of the proceedings. In an interim motion, the court is called upon to engage in a holistic review of the merits of the sale, while considering the interests of each party and the children. The court must also balance the prejudice to the claims of each party regarding the home against prejudice to the other and the advantages of sale, see R.L. at para. 31.
[53] In Dhaliwal, at para. 16, Pazaratz J. outlined 19 principles for consideration. While I do not propose to reproduce them here, some of the key principles relevant to the facts before me include the following:
a. In family law cases, an order under the Partition Act is generally not made until any dispute related to the property has first been determined, Maskewycz v. Maskewycz;
b. When assessing and guarding against potential prejudice, the court must take a realistic view of the potential impacts of a sale – both positive and negative – in relation to the interests of both joint tenants and the family is a whole. Where the financial or other circumstances of the parties are such that a sale would be the inevitable result at trial, there is little justification for delaying the sale, Zargar v. Zarrabian 2016 ONSC 2900; Giglio v. Giglio, 2015 ONSC 8039 and Keyes v. Keyes 2015 ONSC 1660.
c. The mere existence of children in a household is not in itself a sufficient basis to oppose a sale. A generic statement that children enjoy living in their current house or that they will be unhappy if they have to move is not sufficient. The party opposing the sale must establish a likely negative impact more serious that then inevitable adjustments and disruptions which all families face when parents decide to separate.
d. Impacts on children or a vulnerable spouse ought to include considerations concerning the emotional impact and the need to ensure that there be appropriate housing. The availability and affordability of alternate housing must be considered. The analysis should consider support obligations that may have to be coordinated, even on a temporary basis, to ensure that any party displaced by a sale will have the resources to arrange for reasonable replacement accommodations, see Delonghe v. Delonghe, 2019 ONSC 6954, Kaine v. Shaw 2017 ONSC 3050.
e. The court cannot compel one joint tenant to sell to the other. Nor can it give either joint tenant a right of first refusal. But a recipient of an equalization payment may propose to set that entitlement off against their former spouse’s share of the equity in the home. If a sufficiently particularized proposal seems viable – and especially if it would benefit a child – sale should be delayed to allow proper consideration of that option, see Martin v. Martin, DiBattista v. Menecola, and Chaudry v. Chaudry 2012 ONSC 2149.
f. Generally, the party opposing the sale must show malicious, vexatious or oppressive conduct relating to the partition and sale issue in order to avoid the sale, Silva v. Silva.
[54] On the evidence before me, the Respondent withheld his agreement to the sale for 17 months to allow him to obtain financing and the Applicant agreed to that delay. There is no evidence that her conduct has been malicious, oppressive, or vexatious. It is not unreasonable for the Applicant to want to move the process forward and not wait indefinitely. Although the Respondent did not provide the court with details of his efforts to obtain financing, clearly he has encountered difficulties. The Respondent makes submissions as if he is entitled to a buyout, but as noted above, he does not have entitled to such a legal right.
[55] There is also no evidence that the children’s lives will be disrupted any more than in terms of the ordinary disruption caused by their parents’ separation. Insofar as a listing at this stage could mean a move in the middle of the school year with all the disruptions that would bring, the Respondent has only himself to blame for that. Had he agreed to a listing 6 months ago, the parties may not be confronted by a midyear school disruption. The Respondent provides no particulars when he says that “the children are already going through so many changes and I would like to have some normalcy for them”.
[56] Related to the foregoing, I observe that the Respondent offered no explanation on what he means by asking the Applicant to “wait for a little more time”. How much more time is he contemplating? Absent better particulars on what he would hope to accomplish and his specific plan of action, his request is meaningless.
[57] Against these concerns, I cannot ignore that the Respondent has been paying for the bulk of the home expenses and that the Applicant is not facing unsustainable expenses. I also note the disagreement over the equalization payment between the parties. The Applicant’s requirement that the Respondent share of the net proceeds of a sale be held in trust until the equalization is settled or litigated, suggests an attempt at some expedient positioning in the negotiations.
[58] I also cannot ignore the absence of any evidence on where the parties will live following the sale of the matrimonial home, the neighborhoods they may consider, and generally, what that next day will look like for the three children. Support obligations are unclear, as are the differences over equalization.
[59] Given the foregoing tensions, the reality is that answers to many of these questions will begin to crystallize only once both parties accept that the matrimonial home will be sold and that changes will occur. To date, this is has been more illusory then real.
[60] In an effort to confront the implications of the sale of the matrimonial home, it is appropriate that the parties turn their minds to the sale of the matrimonial home, and begin that process, which would require them to settle on the identification of a real estate agent, the determination of a listing price, the consideration of an appropriate timeline for the sale, and the identification of their future housing arrangements. These steps take time and will require coordination to keep the disruption that the sale will cause to a minimum.
[61] It is also essential that the parties attend at a settlement conference at the first available date with the court and from there, if they are unable to settle, proceed to trial. I take this opportunity to observe that these parties are of modest means and their assets are fixed. Whether the matrimonial home sells for $1.2 or $1.3 million, they stand to realize somewhere in the range of $800,000 to $900,000 in net proceeds. On the various equalization scenarios, they may discover that their continued disputes and the legal fees associated with their court attendances will be to their detriment. I invite both parties to think about these implications.
[62] Insofar as the handling of the sale proceeds are concerned, on the evidence before me, both parties would be entitled to receive a portion of the net proceeds. But sufficient funds must be held in trust to allow for the eventual reconciliation related to equalization, support, outstanding legal costs, as well as costs of a potential trial.
[63] Given the foregoing, the following orders with respect to the matrimonial home are to issue:
a. The parties shall cooperate in the sale of the matrimonial home, known municipally as 25 Aldersgate Drive, Brampton, Ontario.
b. Neither party shall further encumber the matrimonial home.
c. The parties shall identify a real estate agent for the sale of the matrimonial home within 20 days from the date of this order. If they are unable to agree on one agent, each party will be entitled to choose an independent real estate agent acting, and the two agents will cooperate to list the matrimonial home for sale.
d. The parties shall consult the real estate agent and be guided by his or her recommendations on the appropriate listing price, the timing of the listing, any repairs and staging of the matrimonial home, the inclusion of the appliances and fixtures, and any other considerations that would maximize the prospects of a successful sale.
e. The parties shall accept the first reasonable offer as recommended by the real estate offer. In the event of an impasse, the parties may book a 9 a.m. appointment before me through the trial office to obtain further direction.
f. The parties must identify and share with each other their respective plans to obtain affordable housing for themselves and their children within 30 days from the date of this order. Given the agreement to have a week about parenting arrangement, their respective housing options will have to take into account the proximity of the housing to each other and to the children’s schools, with reference to the current school year, as well as the years to come. The plans will have to be realistic, include sufficient particulars on how they will be executed, and the timing of the plan’s implementation. It will be essential for both parties to be able to demonstrate that each will have the resource to arrange for reasonable replacement accommodations.
g. The matrimonial home shall not be listed for sale until the respective plans are exchanged. If either party uses this requirement as a delay tactic, the parties may book a 9 a.m. appointment before me through the trial office to review the situation.
h. For greater clarity and certainty, this court cannot compel one party to sell to the other. Nor can the court grant the parties a right of first refusal. At the same time, nothing stands in the way of either party presenting a sufficiently particularized proposal to the other for the purchase of the matrimonial home. In this instance, the parties have already squandered 17 months. It is appropriate that the parties be given 30 days from the date of today’s order to put forward their own plan. That way, any proposed plan may be considered and compared to the advice they receive from the real estate agent.
i. The parties shall agree on a real estate lawyer for the sale transaction. In the event of a disagreement, each party shall identify two options and present them to me for my selection.
j. Subject to any further court order or settlement of the parties, on the closing of the sale of the matrimonial home, each party is to receive 25% of the net sale proceeds. The parties will then have up to 90 days to reconcile the accounting for the balance of the net proceeds, either by agreement or by bringing a motion.
k. Given the foregoing pressures, a settlement conference is to be scheduled for November 13, 2024 at 2:15 p.m., in person.
COSTS
[64] Costs of the motion are reserved, at least until the issue of M.T.’s school attendance is resolved. At that time, I may ask the parties to file supplementary cost submissions. Success on the issue of the sale of the matrimonial home is divided. Accordingly, there will be no costs for that part of the motion.
RSJ E.R. TZIMAS Released: September 03, 2024