Ontario Superior Court of Justice

Court File No.: FC-21-474
Date: 2025/04/22

BETWEEN:
Cynthia Runolfson, Applicant
– and –
Robert Charles Runolfson, Respondent

Applicant Counsel: Cecil Lyon
Respondent Counsel: Jack Pantalone
Heard: February 13, 2025

Reasons for Decision on Motion for Sale of Cottage Property
Somji J.

Introduction

[1] The Applicant mother seeks the immediate sale of a cottage situated on a leased lot on a Christian retreat property in Bloomfield, Ontario. The Respondent father opposes the sale until after the parties have resolved equalization of net family property so that he has funds to bid for the property at fair market value. The father also requests the mother to complete her business valuations so that the parties can either resolve or go to trial on the issue of equalization. In addition, the father seeks reimbursement of post-separation and education expenses owed to him.

[2] The issues to be decided are as follows:

1. Should the mother be ordered to provide a business valuation of the parties’ companies by her own expert?
2. Should the father be reimbursed $100,313 of post-separation expenses from the mother’s share of the net proceeds of sale of the matrimonial home?
3. Should the father receive $62,423 from the parties’ joint RESP account for payments he made for the children’s post-secondary expenses?
4. Should there be an order for the immediate sale of the cottage property pursuant to the Partition Act, RSO 1990, c P.4?

Evidence Filed

[3] In addition to the factums filed by the parties, I have relied on the following evidence:

1. Mother’s affidavit dated August 29, 2024, and exhibits totaling 106 pages.
2. Mother’s affidavit dated February 7, 2025, and exhibits totaling 74 pages.
3. Affidavit of Rick Evans, mother’s expert, dated February 7, 2025.
4. Father’s affidavit dated January 31, 2025, and exhibits 239 pages.

[4] This matter proceeded before Justice Summers for multiple case conferences (CC) and case management conferences (CMC). I have consulted the following endorsements prepared by Her Honour dated: CC July 6, 2023; CMC August 30, 2023; CMC October 5, 2023; CMC December 21, 2023; CMC April 4, 2024; and CMC June 12, 2024.

Issue 1: Should the mother be ordered to provide business valuations by her own expert?

[5] The parties married on October 9, 1999. They have three children from the marriage ages 16, 21, and 23. The youngest is in high school.

[6] The parties dispute the date of separation. The mother filed her Application on March 8, 2021. However, it was not served on the father. The parties attended mediation on September 9, 2022, but the father did not know that the mother had initiated proceedings earlier. It was only in February 2023 when the father attempted to issue his own Application that he discovered the mother had started court proceedings. The father claims the date of separation is May 19, 2022.

[7] The mother’s Application included a claim for equalization of the net family property, sale of the parties’ matrimonial home and cottage, and spousal support. The parties’ matrimonial home sold in November 2024 for $2 million. There remains $933,000 from the net proceeds of sale currently held in trust. As discussed below, the parties jointly own a cottage property which the mother seeks to sell immediately in the open market.

[8] The mother is a Chartered Professional Accountant and a Chartered Business Valuator (“CBV”) with a Bachelor of Business in accounting from Acadia University. She is the sole shareholder of Runolfson Kehoe Professional Corporation, an accounting and valuation business which she purchased in 2016.

[9] The father has a Bachelor of Engineering from Carleton University. He is the CEO of Luminos Industries Ltd (“Luminos”) which designs and manufactures phototonics positioning stages, fibre optic switches, and speakers. He operates the business with one other shareholder. The father’s shares in Luminos are owned by Runolfson Engineering Corporation, a holding company (“Holdco”). He also has a company Flightscape which he purchased before marriage.

[10] There are four businesses that require valuations to determine equalization:

1. A jointly owned Holdco called Runolfson Engineering Inc.
2. The mother’s company Runolfson Kehoe LLP
3. The father’s company Flightscape Inc.
4. The father’s company Luminous Industries.

[11] On June 12, 2024, Justice Summers ordered that the parties’ respective experts were to complete business valuations by August 31, 2024. The father completed his valuations by the target date. The mother did not.

[12] On January 23, 2025, six months after the deadline, the mother provided the father with an expert report prepared by Richard Evans of McCay Duff LLP on the valuation of Runolfson Engineering and the valuation of Runolfson Engineering Inc’s 30.72% ownership interest in Luminos industries as of the separation date May 19, 2022. Mr. Evans was also tasked to provide an income determination report for the father’s taxation years of 2018 to 2022. Mr. Evans also prepared an affidavit dated February 7, 2025, responding to the father’s challenges of his credentials as a CVB.

[13] The mother did not provide a valuation of her own business Runolfson Kehoe LLP or the father’s company Flightscape. The father argues that without these valuations, the parties cannot move towards settlement negotiations or litigation on the issue of equalization. He requests the mother complete these valuations within 30 days failing which her pleadings should be struck.

[14] The mother argues that she neither agreed to nor was ordered to provide any business valuation reports other than the one for Runolfson Engineering. She argues that based on her own experience as a CBV, she believed the quickest most cost-effective way forward was to have an expert prepare a critique of the father’s valuations, and if there was disagreement, for the experts to engage in “hot tubbing.”

[15] I find the mother’s opinion that she could proceed by way of a “critique” is not supported either by any agreement between the parties or the directions of the court.

[16] On June 1, 2023, the mother’s counsel proposed that the parties jointly retain an expert for the valuations. The father’s counsel promptly responded on June 5, 2023, indicating that while such a proposal might make sense, his client wanted to have his own independent valuations, had retained AP Valuations in Toronto, and that AP Valuations was underway in its work. The father’s counsel also advised that AP Valuations had been provided the financial disclosure for the father’s companies and was awaiting financial disclosure of the mother’s companies to complete its work.

[17] On July 6, 2023, the parties appeared before Summers J for a case conference. Her Honour’s endorsement states that the parties have retained their own valuation expert to provide an opinion of business values and prepare an income analysis to assist the court in determining income. At that time, the father confirmed he had prepared a list of disclosure required from the mother’s companies. There was a dispute around the father’s production of the Minute Book for Luminous and the father agreed to check with the other shareholder if it could be provided to the mother’s business valuator. Summers J agreed to case manage the file.

[18] The parties appeared in front of Summers J again on October 5, 2023, December 21, 2023, and April 4, 2024. In her April 2024 endorsement, Summers J noted that the parties “anticipate their business valuations and income reports will be completed in the near future.”

[19] On June 12, 2024, the parties proceeded to their fifth case conference in this matter. In her endorsement, Summers J expressed the need for the matter to move forward to trial. Her Honour noted that a significant concern to the court was the “ongoing delay around the completion of the mother’s business valuations.” Summers J added “It has been over a year since the work began. While I heard explanations, none were persuasive. In this instance, instructions should be given to complete the reports by a fixed date.”

[20] Summers J then ordered the parties to complete their respective business valuations by August 31, 2024. Her Honour directed that each party instruct their own business valuation experts to complete their reports by the target date following which the experts would meet to discuss the issues on which they agree and disagree. Paragraphs 5 and (6)(d) and (e) of Justice Summers’ endorsement of June 12, 2024, read as follows:

5. This case needs to move forward to trial. Rule 1(7.2) gives the court the discretion to make orders, give directions, and impose conditions respecting procedural orders, as are just. The orders can be made at any time in the case.

6. The rule includes a non-exhaustive list of possible orders. Under this rule, I make the following orders:

(d) The parties shall instruct their respective business valuation experts to complete their reports no later than August 31, 2024, and deliver it to the other party within 7 days thereafter.

(e) The parties shall instruct their valuations to meet to discuss the issue and prepare a joint statement setting out the issues on which they agree, the issue that are in dispute, and why. The parties shall instruct their experts to complete this task by November 30, 2024.

[21] There is nothing in the language of the above-noted directives of June 12, 2024, or Her Honour’s earlier endorsements that suggest the mother would simply retain an expert to critique the father’s valuations. In fact, it was only on February 4, 2025, eight months later, that the mother’s counsel proposed the idea of exchanging valuations following which the parties “may elect to retain an expert to provide a critique, at a much lower cost.” At that time, AP Valuations had completed four valuations requested by the father for Runolfson Engineering Inc., Luminos, Flightscape, and Runolfson Kehoe Professional Corporation. The mother had only completed valuations for the Holdco Runolfson Engineering Inc. and its share of Luminos.

[22] As both parties are aware from their own professional work, business valuations are complex. A critique of another expert’s valuation may undermine the value of that expert opinion, but it does not necessarily assist the opposing party, or if litigated, a trial judge, in determining what value should be assigned to a business for the purposes of determining equalization. That requires examination of each company’s financial statements, identification of the valuation method used, and an explanation of how the valuation was arrived at. While in some cases parties may agree to a joint expert or an alternate method of presenting the valuations to the court, no such agreement was ever arrived at by the parties.

[23] On the contrary, the mother was aware as early as June 2023 and certainly by June 2024, that the parties were to retain their own experts to conduct business valuations for the purpose of advancing the issue of equalization of net property. If either she or her counsel had a different understanding, it would have been incumbent on them to address it at the case conference in June 2024, if not earlier, and not to have awaited until February 2025. I find the mother’s failure to do so has significantly delayed the advancement of this Application.

[24] I agree with the father that this matter cannot advance to resolution or litigation on the issue of equalization without the completion of business valuations by the mother’s own expert which was what was intended from the outset. Consequently, there will be an order that:

1. The mother shall retain an expert to complete certified business valuations of Runolfson Kehoe Professional Corporation and Flightscape by July 1, 2025.
2. Both parties shall cooperate to provide the financial disclosure requested to the mother’s designated expert to allow for completion of the mother’s valuations in a timely manner.
3. If the parties are not agreeable to the separation date of May 19, 2022, both parties’ experts are required to provide valuations for any alternate proposed dates of separation. This may require the parties’ experts to provide updated or amended reports.
4. The parties will exchange their respective valuations by July 15, 2025.
5. Having reviewed the opposing party’s expert reports, the parties shall have their own experts complete and exchange any supplementary or updated reports by August 15, 2025.
6. The parties will contact Trial Coordination to schedule the matter for a settlement conference by September 5, 2025.

[25] Given it is now four years since the Application was filed, the matter has been added to the November 2025 trial list. The parties should notify their experts accordingly to be available for those trial dates. The parties were offered the opportunity to proceed to trial as early as September 2025, but the mother’s counsel was unavailable. Trial Coordination will arrange for the parties to proceed to a trial management conference 30-60 days prior to trial.

[26] At this stage, I will not make an order for “hot tubbing” of the experts. Should this matter proceed to trial, the parties are aware of their responsibility, as per Summers J’s endorsement, to narrow the issues for the trial judge by identifying the areas on which their respective experts agree and disagree with respect to each business valuation. Counsel can arrange for “hot tubbing” in accordance with the availability of their respective experts should they wish. Further directions can be requested at the settlement or trial management conference if necessary.

Issue 2: Should the father receive $62,423 from the parties’ joint RESP account for payments he incurred for the children’s post-secondary expenses?

[27] Since the Application was commenced, the parties two eldest children have attended university. As of 2023, the eldest child was in 4th year and the middle child was in 2nd year university. In 2022, the father took over responsibility for both the children’s university budgets and costs. He seeks to be reimbursed from the children’s RESPs in the amount of $62,423.

[28] The father explains that in the fall of 2022, after the parties signed the Settlement Memorandum of Understanding (“SOU”), funds from other RESP accounts were deposited to the parties’ joint bank account for the purpose of covering the children’s budgeted university expenses. However, the mother refused to allow the father to withdraw these funds for university expenses resulting in him paying personally for these costs from a new account that he opened. The father advised the mother in an email on January 13, 2023, that he expected to be reimbursed for these costs when an additional RESP investment came due. The father was referring more specifically to a $100,000 RESP investment into a private equity project which only became available for the parents to transfer into the RESP holding account on July 22, 2024. Between August and November 2024, the father forwarded multiple requests to the mother for reimbursement of the university costs he incurred from the newly available RESP funds. When the mother failed to reimburse him, he raised the issue as part of his cross-motion.

[29] The mother did not respond to this issue in her factum or her affidavits on the grounds that the issue was not canvassed at a case conference and therefore, cannot form part of this motion. She argues that she promptly brought a motion for the sale of the cottage property on August 30, 2024, but did not receive notice of the father’s cross-motion until January 21, 2025. She argues the unreasonable delay in filing the notice left her little time to reflect and respond to the issues. I respectfully disagree.

[30] In her endorsement of June 12, 2024, Summers J did indicate that the parties may proceed to motions on issues that were case conferenced, and if not conferenced, the parties required permission to proceed. While I appreciate the father should have obtained leave, I am mindful of the continuous delay in advancing multiple issues in this file and breached deadlines by both parties. For example, Summers J directed the parties to proceed with their motions by December 30, 2024, and neither of them did. In addition, Summers J instructed the parties to proceed to a settlement conference by February 28, 2025, and no such conference was scheduled. In fact, it was only during the motion hearing of February 13, 2025, that I placed the parties on a trial list so that this matter can move to conclusion.

[31] Furthermore, I find the mother has been aware for several years of the father’s concerns regarding the management of university expenses and reimbursement for the said expenses. First, on October 19, 2022, the father’s counsel wrote to the mother’s counsel to address the parties’ ongoing monthly expenses as per their SOU. More specifically, the father requested in that correspondence that the SOU be amended to take into consideration the children’s university costs. The father proposed the parties agree to amend the SOU to include monthly amounts of $1900 and $1100 for the eldest and middle child to partially cover university rent, food, and transportations expenses, that the parties agree to periodically pay for tuition, book, and cell phone costs, and that where the RESP savings accounts are insufficient, the parties instruct the banks to withdraw sums from their joint line of credit to cover these expenses.

[32] Second, on August 20, 2024, the father sent the mother an email requesting reimbursement of the university expenses he incurred from the $100,000 of RESP funds which became available to the parties in July 2024. This request was followed up by several more emails. In her email response of September 14, 2024, the mother indicated that she needed a legal opinion on the matter. When the father did not receive a further response, he wrote to the mother’s counsel on November 21, 2024, indicating that he has been asking since August 2024 for the transfer of the $100,000 into the joint RESP account so he could be compensated for university expenses incurred. The father informed counsel that he is paying interest on the line of credit he used to pay for these expenses while $100,000 of funds remain available and not earning interest as it has not been reinvested. The father requested repayment of $51,000 and that the balance be reinvested. It was only on January 7, 2025, that the mother finally agreed to sign off on the transfer of the $100,000 equity investment into the joint RESP account, but only on the condition that the father would not remove any such funds.

[33] Third, the mother has had access to the children’s university budgets on a share drive for the entirety of their schooling years and had previously agreed to the use of RESPs to pay for post-secondary expenses. Furthermore, the mother indicated to the father in her email of August 20, 2024, that she had reviewed the table expenses claimed by the father but disagreed with some of the amounts incurred. This suggests the mother has been fully aware of the amounts claimed by the father since August 2024. The father provided further explanations in his email of August 29, 2024, for the increase in the children’s expenses and confirmed with the mother that the children have also been working and contributing to their own university costs.

[34] Finally, while the issue of university expenses was not part of the June 12, 2024, case conference, in the party’s correspondence of September 20, 2024, there was a discussion about adding this issue to the matters for review by Summers J. The father indicated the mother could add the issue, but in his view, it was a straightforward matter of the mother agreeing to the transfer of the available RESP funds and reimbursement to him for expenses incurred. A further case conference was not held thereafter before Her Honour.

[35] I find the mother has been aware of the ongoing post-secondary costs of the eldest children and the father’s request to be reimbursed for these costs and has had ample time to reflect on the issue. In addition, I find the mother has had all the information she needed to adequately respond to this issue when raised in the father’s cross-motion. There is no reason the mother could not have adequately addressed this issue, at minimum, in her Reply affidavit, factum, or oral submissions. Given the mother’s knowledge and engagement on this issue since August 2024, the ongoing delays in this matter, and the resulting financial prejudice to the father, I find the father is entitled to have this issue decided on an interim, without prejudice, basis.

[36] Parents have an obligation to financially support their children who are minors or enrolled in a full-time program of education to the extent they are capable of doing so unless the child is above 16 and has withdrawn from parental control: Section 31(1) and (2) of the Family Law Act, RSO 1990, c F.3, as am; Lewi v. Lewi, 80 O.R. (3d) 321 (C.A.).

[37] The determination of the children’s entitlement to financial support and the quantum of contributions from each parent and the child is a fact specific determination. It requires consideration of the university program and costs, the funding sources available to the child, and the means of the child and each parent: Housh v. Rayvals, 2024 ONSC 6747, paras 64-76.

[38] In Menegaldo v. Menegaldo, 2012 ONSC 2915, para 174(9) Chappel J set out a list of relevant factors to determine entitlement. These include: i) whether the child is attending a part-time or full-time course of study; ii) the availability of student loans, scholarships, and bursaries; iii) the child’s savings from employment; iv) the reasonableness of the education program and the child’s ability to perform in the program; v) the child’s age, qualifications, experiences, aptitude, and maturity; vi) and any parental plans made for funding post-secondary schooling.

[39] Once a child’s entitlement to support for post-secondary education is established, the quantum of support payable by each parent is determined based on various factors including the parent and child’s means. This does not mean a child must exhaust all their savings for post-secondary education before parents contribute nor does it mean that no contribution is expected from a child. Similarly, parents may set aside RESPs for their children with the expectation that they will be used for post-secondary costs and thereby reduce their own parental contributions.

[40] Once the funding sources available for a child’s post-secondary costs have been determined, parents must determine what constitutes a reasonable contribution by the child from all these sources. There is no standard formula for what is reasonable under either s. 7 or s. 3(2)(b) Ontario Child Support Guidelines, O. Reg. 391/97 (“Guidelines”) and the determination will vary on the circumstances of each case. While the courts will often require that children put most of their summer earnings toward education costs, it is also recognized that children may retain a portion of their earnings for discretionary spending: Diaz v. Pena, 2016 ONCJ 88, para 126; Simone v. Van Nuys, 2021 ONCJ 652, para 123. Alternatively, if parents have the financial means to provide adequate support, consideration may be placed to limiting the extent of the child’s debt or require student loans be delayed altogether to a later stage of the child’s post-secondary education: Cook v. Plante, 2007 CarswellOnt 7385, para 17.

[41] In this case, there are RESPs available to pay for the children’s expenses. Both children have been working and contributing to the costs of university. I also find that both parents have the financial ability to contribute to post-secondary costs over and above the contributions from RESPs and their children’s own contributions.

[42] Upon review of the correspondence between the parties, it is apparent that the mother does not dispute that the father should be reimbursed from the parties’ RESPs for his payment of the university costs but takes issue with some of the amounts claimed. In her correspondence to the father of August 26, 2024, the mother states that she does not feel it necessary to pay for items like “Starbucks coffee, cell phones, and car insurance.” While the mother was agreeable to paying for the children’s tuition, books, school related fees, and some gas transportation, she requested the father provide verifiable receipts. The mother also raised concerns that if the father were reimbursed the amount requested, it would leave only about $45,000 for the youngest child.

[43] On August 29, 2024, the father promptly replied to the mother’s concerns. He explained the nature of the university expenses, the reasonableness of the children’s monthly budget, the children’s contributions to schooling from their own employment, and that his payments for tuition and school supplies are evident from the bank and credit card statements. The father provided the mother with further and similar explanations in his email of September 20, 2024. He explained that the RESP funds currently available were the result of careful planning by the parties since 2010, and that he fully intended to further invest and support his youngest child in the same manner when she was ready to attend university.

[44] Despite these explanations, the mother has not specifically identified which expenses for the two eldest children should not be covered by the children’s RESPs which would have allowed for reconciliation of at least some expenses. As of January 7, 2025, the mother had still not addressed the father’s request for reimbursement from the parties’ RESPs and in her correspondence to the father stated only that she found paying for 90% of the children’s education expenses to be disproportionate.

[45] I find the mother’s conduct on this issue to be unreasonable. The mother is a professional Chartered Accountant. She could have identified as early as October 2022, if not earlier, if the children’s university budgets were excessive, what amount she was willing to pay for the two eldest children from the children’s RESPs, and if either she or the father should cap their contributions over and above these funding sources. Had she done this, the father would at least have been put on notice that the mother was no longer agreeing to funding the eldest children’s university from the parties’ RESPs and that if he paid for any of the children’s expenses, he did so of his own accord. She did not. Furthermore, the mother could have identified in August 2024 when she reviewed the father’s table of expenses what she agreed could be reimbursed to him from the RESPs and what she found to be excessive and wished to contest for trial. She did not.

[46] I find the mother’s conduct has resulted in delay and financial prejudice to the father. The father has paid for the two eldest children’s university costs from his own income sources and lines of credit and for which he continues to pay interest when the parties have available to them $100,000 in RESP funds to pay for post-secondary education. In addition, the father continues to assist his eldest son with further post-secondary education costs.

[47] Upon review of the father’s materials, I find the father’s expenditures for the children’s university costs to be reasonable. Payments were made for tuition and books. The father’s monthly budgets for the children are reasonable given the costs of living. The expenditures accord with the projected annual costs for university in Ontario. Consequently, there will be temporary, without prejudice, order that the father be immediately reimbursed $50,000 from the children’s RESP for post-secondary expenses incurred.

[48] I have held back $12,423. There will be an order that the mother shall identify and inform the father within 30 days what specific expenses she contests should not be reimbursed from the children’s RESPs (“non-reimbursable expenses”). These non-reimbursable expenses will then be litigated at trial. Should the non-reimbursable expenses amount to less than $12,423, there will be an order that the father will be reimbursed for the remaining balance of the expenses from the RESPs within 60 days. If the non-reimbursable expenses exceed $12,423, the mother is entitled to litigate the entirety of the amount at trial.

Issue 3: Should the father be reimbursed $100,313 for ongoing post-separation expenses?

[49] The parties signed the SOU on September 14 and 15, 2022, that addressed various issues including payment of the operating expenses relating to the matrimonial home and cottage and rent for a home for the father and youngest daughter during his parenting time. The SOU stipulates a separation date of May 19, 2022. Compliance with the SOU is now in dispute.

[50] The father states that within a few months of signing the SOU, the mother refused to consent to the sufficient disbursement of funds from the joint line of credit resulting in missed mortgage and NSF (non-sufficient) payments for the matrimonial home. The father alleges the mother withdrew funds from the same joint bank account for her own and the youngest child’s personal expenses. The father wrote several emails to the mother to address the issue but was directed to go through the lawyer.

[51] Consequently, to avoid foreclosure of the mortgage and unpaid bills, the father, on the recommendation of a bank manager, closed the party’s joint bank account and opened a new bank account in his sole name in January 2023 from which he began to make payments for the parties’ post-separation expenses. On January 13, 2023, the father wrote to the mother to explain his reasons for doing so and asked that she repay him monthly for her portion of the shared expenses. In that letter, the father identified the shared expenses including the mortgage on the matrimonial home, property taxes, insurance, interest on lines of credit, cost of his rental property, post-secondary expenses for the two eldest children, and costs for the cottage.

[52] The mother failed to pay for her portion of the post-separation expenses resulting in the father incurring over $200,000 for such expenses. On November 11, 2024, the father’s counsel wrote to the mother’s counsel indicating that the mother’s share of post-separation expenses as of that date was $100,313. The father included a detailed spreadsheet of the shared expenses. Notwithstanding the father anticipates the mother will owe him an equalization payment of approximately $675,000, the father proposed that the mother pay for her share of the post-separation expenses from the proceeds of sale of the matrimonial home presently held in trust. The father did not receive a response to his letter nor did the mother reimburse him for these expenses resulting in him raising it in his cross-motion.

[53] The mother does not address this issue in her factum on the grounds that post-separation expenses were not properly case conferenced. I respectfully disagree. On October 5, 2023, Summers J identified compliance with the SOU as an issue and stated that the parties could proceed to a motion on the issue. Furthermore, on June 12, 2024, Summers J identified the reconciliation and payment of post-separation expenses following the SOU signed two years ago as an ongoing issue. Her Honour went on to state “It is increasingly difficult to imagine any valid reason for the delay or the approach taken to the financial obligations under this agreement.”

[54] While the mother does not address the issue in her factum, she does refer to the SOU and post-separation expenses in her Affidavit of February 7, 2025. The mother acknowledges that the parties did agree in the SOU to share expenses for the matrimonial home which she occupied, the father’s rental property, and the jointly owned cottage. These expenses were estimated to be $13,000 based on figures presented at mediation. The mother understood the SOU was temporary, and the parties were to return to mediation on September 26, 2022. She claims the father resiled from the process and no further mediation sessions were scheduled.

[55] The mother claims the father ignored the terms of the SOU and engaged in unilateral actions contrary to terms of the SOU. These included: not abiding by parenting terms; involving their children in post-separation conflict; withdrawing funds from the parties’ joint bank account; closing the joint bank account; paying for the joint property expenses outside the protocols agreed to; shutting off the heat and hydro to the matrimonial home in January 2023; threatening to only consent to the transfer of funds to cover shared expenses if the mother agreed to his choice of realtor; and transferring funds from their Holdco into his personal account. The mother also took objection to the father transferring additional funds in October 2022 from their Holdco to their joint account on the grounds that the shared expenses were to be funded from their joint line of credit and not the Holdco.

[56] The parties’ explanations for the breakdown of their arrangement for payment of post-separation expenses as per the terms of the SOU are controverted. Nonetheless, even if the father were to be found to have breached the terms of the SOU, I do not find that this in and of itself justifies the mother’s failure to contribute to the parties’ joint post-separation expenses for 2 ½ years and to reconcile these amounts in a timely manner. The mother has had ample opportunity to offer an alternate arrangement to pay for her share of the post-separation expenses if she did not like the father taking responsibility for these payments and paying him monthly.

[57] Furthermore, in her affidavit of February 7, 2025, the mother acknowledges that based on her own tracking of the shared post-separation expenses, she does owe the father funds but disagrees with the amount of $100,313. For example, she argues that the father has included interest costs in the amount of $10,663 which was not a term of the SOU. Unfortunately, while she agrees she owes the father post-separation expenses, she has neither specified the precise amount nor agreed to pay at least that amount to advance this matter. Rather, she filed her own spreadsheet of expenses dating back to September 2022 along with explanations for the various expenses. The mother takes the position that the issues of post-separation expenses should be dealt with at trial, or alternatively, resolved through another procedure to spare the Court from going through line-by-line through all the spreadsheets to reconcile the differences.

[58] While I agree with the mother that going through the parties’ spreadsheets is not an ideal use of the Court’s time at a motion hearing, I find that the mother’s delay in addressing this issue results in ongoing financial prejudice to the father. The father should not have to await another six months until after the trial to be compensated, at least in part, for having paid for the bulk of the parties’ post-separation expenses for 2 ½ years. As the father points out, between September 2022 and November 5, 2024, a period of 26 months, he incurred $284,145 in shared property expenses. Of that total, 59% was for the matrimonial home which the mother occupied, 34% was for the father’s rental income, and 7% was for the cottage. Some of these expenses are non-controversial. Furthermore, the mother has funds available to her from the net proceeds of sale of the matrimonial home to reimburse the father in full or in part.

[59] Consequently, there will be a temporary, without prejudice, order that the father will be reimbursed forthwith $60,000 for post-separation expenses incurred by him between September 2022 and November 2024 from the mother’s share of the proceeds of sale of the matrimonial home held in trust.

[60] I have held back $40,000 from the father’s claim. There will be an order that the mother shall identify and inform the father within 30 days precisely which post-separation expenses she disputes (“disputed expenses”). These disputed expenses will be litigated at trial. If the disputed expenses are less than $40,000, there will be an order that the father will be reimbursed within 60 days for the remaining balance of the expenses owed from the mother’s share of the proceeds of sale of the matrimonial home. If the disputed expenses exceed $40,000, the mother is entitled to litigate the entirety of the amount at trial.

Issue 4: Should the cottage property be sold pursuant to the Partition Act?

[61] The parties jointly own a cottage on a lease lot located on Gasket Island in Prince Edward County. Wesley Acres Inc. owns and operates Gasket Island as a land lease community called Wesley Acres Trailer Park. It includes over 100 cottages, trailers, and mobile homes. It is run as a Christian retreat centre and campground. Some cottages in the community are mobile homes or trailers while others are dwellings permanently affixed to the land. The parties’ cottage is affixed to the land, and they lease the lot from Wesley Acres Inc.

[62] The process of purchasing a cottage or dwelling on Wesley Acres Inc. is unique. To move into Wesley Acres Trailer Park, one must first receive approval to lease a lot from Wesley Acres Inc. One can then bring one’s own dwelling onto the lot or purchase a trailer already on the lot from a previous lease holder. The parties acquired their cottage in this manner in 2011 and lease the lot annually. They paid $140,000 for the cottage and co-signed a purchase agreement with the former owner. Wesley Acres Inc. received a 5% transaction fee for the sale. Over the years, the parties invested at least $190,000 in renovating the cottage.

[63] Between May 2011 and until separation, the parties ordinarily resided at the cottage on the weekends and for parts of July and August. Since January 2023, the father has been using the cottage exclusively on the grounds that the mother has not contributed towards the upkeep of the cottage and the mother’s attendance has been disruptive resulting in police involvement. The mother claims the father’s exclusion from the cottage caused her to involve the police.

[64] According to the mother, there is no issue with selling the cottage except that Wesley Acres Inc. maintains a right of first refusal on sale of land lease homes on their lots. According to the father, the sale of the cottage is more complex. The father obtained an appraisal of the cottage which states that the faith-based structure of Wesley Acres Campground may preclude some purchasers from acquiring the property. The father contends that the property may not easily sell to a third party because community members would look upon the purchaser as having forced the father to sell the cottage. However, the father has not provided any evidence of this, and I find it to be speculative. As the mother points out, several cottages were recently listed on the Wesley Acres website. One cottage sold for $490,000 and another property with boat, dock, and shipping container was listed for $650,000. According to the father, the latter did not sell.

[65] The problem which arises is that both parties wish to purchase the other’s share in the cottage. On April 3, 2024, the father offered to purchase the mother’s interest for $205,000 placing the value of the cottage at $410,000. The mother made a counteroffer to purchase the father’s interest for $295,000 placing the value of the cottage at $590,000. The father then counter offered for $242,000 on April 24, 2024, which equates to a market value of $484,000. The mother declined his offer. While the mother places the value of the cottage as high as $600,000, she has not obtained an appraisal to support this value.

[66] As a joint owner, the mother seeks the immediate partition and sale of the cottage property pursuant to the Partition Act, RSO 1990, c P.4. The mother claims she is not required to sell her interest to the father and is entitled to sell the cottage on the open market to maximize the return on her investment. Furthermore, there is no evidence that she is seeking the sale for any vexatious, oppressive, or vindictive reason to prevent a sale under the Partition Act, and consequently, there is no legal authority for the court to refuse such sale. Should the cottage be ordered for sale, she does not oppose either herself or the father bidding on the property at the time of sale. The mother also seeks equal access to and use of the jointly owned cottage pending the sale.

[67] The father does not oppose to the sale of the cottage on the open market but argues it should be delayed until after the parties have resolved equalization. For him, the cottage property is akin to a matrimonial home. He has invested cost as well as his own labour and time in improving the property. He, like the mother, has a sentiment attachment to the cottage which is where the children grew up. In addition, he is particularly attached to the Christian community.

[68] More importantly, the father argues that a delayed sale will provide him the necessary funds to bid for the home in the open market. Not including the above-noted post-separation and university expenses, the father anticipates receiving $413,800 from the net proceeds of the sale of the matrimonial home and an equalization payment from the mother of $659,714. He also highlights that the mother’s company owes the Holdco $121,230 as of January 31, 2025. The equalization payment can be satisfied, in part, through the mother’s transfer of her interest in the cottage should she agree to sell him her share. Alternatively, if the mother refuses and the cottage property is to be sold on the open market, the father seeks to rely on the equalization payment to put in a bid. The father highlights that the parties’ inability to resolve equalization is due to the mother’s failure to provide financial disclosure and valuations of her businesses.

[69] Section 2 of the Partition Act, RSO 1990, c P.4 authorizes the court to compel the sale and partition of property held as a joint tenancy or tenancy in common in the province of Ontario. The court’s discretion to refuse such an application is narrow and limited to circumstances where the sale may prejudice the other party's rights under the Family Law Act, RSO 1990, c F.3, or if the application for the sale was brought with malicious, vexatious or oppressive intent: Latcham v. Latcham. The burden of rests with the party alleging such conduct and opposing the application: Davis v. Davis, para 3; Silva v. Silva.

[70] In this case, there is no evidence that the mother’s request for the immediate sale of the cottage property is motivated by vexatious, oppressive, or vindictive conduct. She made this request as part of her initial Application. Moreover, the father has not made such a claim. While the father has some concerns that the sale of the cottage property may be challenging given the right of first refusal held by Wesley Acres and the location of the cottage and viewpoints in this unique Christian community, I am not persuaded these issues would impede a sale.

[71] In support of his position to delay the sale until after equalization, the father relies on the case of Silva v. Silva for the proposition that a sale under the Partition Act may be deferred if it would prejudice the substantial rights of one of the spouses. However, while the court in Silva found that the sale of a property may be delayed to avoid prejudice to a party, it did not grant the appellant’s request to delay sale until after equalization. In Silva, the wife sought the immediate sale of the matrimonial home as she needed the funds whereas the husband sought to delay the sale until equalization of net family property had been resolved so he would have funds to bid. The Ontario Court of Appeal found that the husband’s concern for collecting any equalization payment owing to him or for unequal division of property did not amount to prejudice within the meaning of the case law: Silva at pp. 445-446.

[72] The father’s counsel also filed several other decisions: Walters v. Walters; Arklow v. Arlow; Martin v. Martin; and Goldman v. Kudeyla. However, I find that while these cases reiterate the principles in Silva, they are not persuasive of the father’s position. These cases also deal with the sale of the parties’ matrimonial home which often raises different considerations than the sale of a second cottage property.

[73] In addition, the view in Silva was recently upheld in Brohman v. Brohman, 2025 ONSC 1667, para 18. In Brohman, the Appellant father sought to delay the sale of a matrimonial home until after resolution of the equalization between the parties. The Appellant had resided in the matrimonial home since separation and paid for all the expenses while the Respondence had moved out and purchased alternate accommodations.

[74] The Appellant argued that the motions judge erred in ordering the sale of the matrimonial home pursuant to the Partition Act. A three-member panel of the Ontario Superior Court of Justice, Divisional Court, disagreed. The Court reviewed the decision in Silva wherein the Ontario Court of Appeal stated that a “husband’s concern about collecting an equalization payment owing to him or his claim for an unequal division did not amount to prejudice within the meaning of the case law:” Brohman at para 18 citing Silva, at pp. 445-446. The Court found that the Appellant had not demonstrated that a sale prior to trial would prejudice his claims regarding equalization or that the Respondent’s request for the sale constituted malicious, vexatious, or oppressive conduct. The Court dismissed the appeal.

[75] In this case, while I appreciate the father is frustrated with the delay in advancing this matter and would prefer to have the funds owing to him from equalization to bid on the cottage, I am not persuaded that the sale of the cottage prior to trial is prejudicial to him. The sale will not impact his entitlement to equalization.

[76] Furthermore, I find both parties have sufficient funds to bid on the property at fair market value even without access to their respective net proceeds of sale from the matrimonial home. The mother claims the father owns an unencumbered property valued at $562,000 whereas the father claims the mother owns an unencumbered office condominium valued at $560,000. I find that both parties are financially savvy and, in a position, to leverage their various assets to purchase the cottage should they wish to do so.

[77] Given the financial challenges identified by the father in having carried the bulk of post-separation expenses and having had to leverage his business to pay for ongoing costs, I have considered whether the father should be able to access his net proceeds of sale from the matrimonial home to bid on the cottage. However, it would be unfair to allow one party to do so and not the other. Furthermore, given the amount of equalization the father anticipates is owing to him (the mother has not provided a counter figure), to allow the parties to deplete their net proceeds of sale prior to trial is likely to result in further complications down the road should either party be ordered to pay the other a hefty equalization payment.

[78] Finally, I am also mindful that to delay the sale of the cottage until after trial, now scheduled for November 2025, would effectively result in the delay of the sale until the spring of 2026. While cottages can sell in the winter, sellers commonly await the spring to sell when a cottage might show better and there is a better market for such properties. In this regard, I am also mindful of the father’s own frustration with the delayed sale of the matrimonial home which he claimed resulted in the parties not obtaining as high a price as they anticipated.

[79] For all these reasons, there will be an order for the immediate appraisal and sale of the cottage. Below, I set out conditions for timelines and development of a process so that both parties can fairly bid in the open market. One option for the parties to consider is to require each party to bid at the agreed upon listed price and if no bids come in, to agree to reduce the listed price by an agreed upon amount each month until the house is sold: Rastkar v. Soltani, 2024 ONSC 1384, paras 33-37. I leave the determination of the process to the parties’ discretion.

[80] With respect to the mother’s claim for equal access to the cottage, upon reviewing the evidence of the conflict and police involvement that resulted when the mother accessed the cottage last summer and given the level of acrimony between the parties, I find that allowing the mother equal access on alternative weeks for what is anticipated to be a short period before the cottage is put on sale is likely to result in further conflict between the parties and potentially delay the sale of the property. The father has been paying for and maintaining the cottage since separation. He can continue to do so until the cottage is sold, and the mother’s share of the ongoing expenses can be subsequently reconciled. If the cottage is not sold by the November trial date, the parties can address at trial a schedule for joint access and possibly make up time for the mother’s missed time.

[81] Having said this, the mother is entitled to inspect the cottage to ensure that it is an optimal condition for showings so that the parties can obtain the best price possible. For this reason, I have ordered below that the mother is entitled to inspect the property. Furthermore, should an appraiser or selling agent recommend improvements to the cottage to optimize the sale, those improvements will be incurred only if the parties jointly agree to pay for them ahead of time, and if they can be completed within the timelines for sale set out below.

[82] Pursuant to the Partition Act, RSO 1990, c P.4, there will be an order for the immediate sale of the cottage. In addition, there will be an order as follows:

1. The parties will obtain an appraisal for the cottage by May 30, 2025. The mother will propose three realtors and the father will select from amongst one of them.
2. Upon receiving an appraised value for the cottage, the parties will have until June 15, 2025, to negotiate purchasing the other party’s interest in the cottage.
3. Should neither party agree to sell their interest in the cottage to the other, the parties will retain a real estate agent to assist in the sale of the property.
4. The parties will agree to the listed price recommended by the real estate agent.
5. The parties will work with the real estate agent and counsel to develop a protocol for how the sale will proceed, including consideration that Wesley Acres Inc. has a right of first refusal and that both parties may want to bid on the property while on the open market.
6. If the parties proceed with a sale on the open market, the cottages shall be listed for sale no later than June 30, 2025.
7. The parties will agree to three dates when the mother may attend to inspect the property with an appraiser or real estate agent.
8. Should the appraiser or real estate agent make recommendations for improvements prior to the sale, those recommendations are to be implemented only if the parties jointly agree to pay for them ahead of time and the improvement can be completed within the above-noted timeline for the sale of the property. The parties shall not unreasonably withhold consent if the recommendations for improvements are reasonable in cost and can be completed by June 30, 2025.
9. The father shall have exclusive possession of the cottage until it is sold. The father shall maintain the property in good condition for the purposes of sale.
10. Should the cottage not sell prior to the November trial date, the parties may address at trial a schedule for joint access to the property and any make up time for the mother.
11. The father shall continue to pay for on-going cottage related expenses until it is sold, and the mother’s share of such expenses will be subsequently reconciled as part of the parties’ equalization.

Costs

[83] The father is the successful party on the first three issues and entitled to costs. Given the mother’s unreasonable conduct on these issues as described above, I find the father is entitled to an elevated costs award on these issues. The mother is the successful party with respect to the fourth issue, the sale of the cottage, and is entitled to costs on this issue. The parties are encouraged to resolve the issue of costs. If the parties cannot resolve the issue of costs for this proceeding, they may file brief written submissions not exceeding two pages exclusive of Bills of Costs. Mr. Runolfson shall file his submissions by May 6, 2025. Ms. Runolfson shall file her submissions by May 20, 2025, and Mr. Runolfson will have until May 27th for a brief reply. Costs submissions are to be sent to scj.assistants@ontario.ca and to my attention.

[84] Counsel for the parties shall provide me a draft Order consistent with this decision and approved in form and content for review and issuance by end of day May 1, 2025.

Somji J.

Released: April 22, 2025