COURT OF APPEAL FOR ONTARIO

CITATION: Punit v. Punit, 2014 ONCA 252

DATE: 20140402

DOCKET: C57327

Juriansz, Pepall and van Rensburg JJ.A.

(sitting as Divisional Court)

BETWEEN

Hemwattie Sandy Punit

Applicant (Appellant in Appeal)

and

Raj Komar Punit

Respondent (Respondent in Appeal)

Steven Bookman and Chris Stankiewicz, for the appellant

Peter Cozzi, for the respondent

Heard: March 7, 2014

On appeal from the order of Justice Kevin W. Whitaker of the Superior Court of Justice, dated June 18, 2013.

Juriansz J.A.:

A. Introduction

[1] The appellant has filed an appeal to the Court of Appeal from an order for the sale of the parties’ matrimonial home pursuant to s. 2 of the Partition Act, R.S.O. 1990, c. P.4. The order was made on an interlocutory motion in a matrimonial proceeding. The appeal raises the question of whether the motions judge erred in ordering the sale of the matrimonial home before trial without considering whether the sale would prejudice the appellant’s rights under the Family Law Act, R.S.O. 1990, c. F.3. However, given that s. 7 of the Partition Act provides that an appeal lies to the Divisional Court from any order made under the Partition Act, the Court of Appeal’s jurisdiction was the first issue at the hearing of this appeal. As explained below, the panel determined that the Court of Appeal did not have jurisdiction, and in the exceptional circumstances of this case it is appropriate to decide the appeal sitting as a panel of the Divisional Court, with the designation of the Chief Justice of the Superior Court of Justice.

[2] The appellant commenced a family law proceeding against the respondent in December 2011. She claimed, among other things, interim and permanent exclusive possession of the matrimonial home, an unequal division of net family property, and ongoing and retroactive child and spousal support.

[3] On December 29, 2011, Czutrin J. made a temporary order granting the appellant and the child exclusive possession of the matrimonial home.

[4] By motion heard on June 18, 2013, the respondent sought an order for the sale of the matrimonial home. By cross-motion, the appellant sought an order permitting her to purchase the respondent’s interest in the home, and in the alternative, an order that his motion for the sale be adjourned to the trial of this matter.

[5] At the outset of the motion, the motions judge granted the respondent leave to amend his Answer to plead the Partition Act. His entire reasons for granting the sale order are as follows:

The Applicant Mother seeks an Order permitting her to purchase the home and opposes the motion to sell under the Partition Act. The Father is in need of funds [sic] his assets are frozen and his only equity is in the house. There is no reason to find or conclude here that the father is acting maliciously or in circumstances of oppression or with vexatious intent. Accordingly, the matrimonial home is to be sold pursuant to section 2 of the Partition Act.

[6] He addressed certain interim matters but ordered that all other issues were to be left to trial.

[7] On August 23, 2013, the appellant obtained an order from the Court of Appeal staying the sale order pending appeal. Although the respondent raised the issue of jurisdiction on the motion to stay, Blair J.A. declined to make a final determination on jurisdiction given that the Court of Appeal had previously heard appeals from orders under the Partition Act, in spite of s. 7, in cases where the primary proceedings fell under the Family Law Act.

B. Jurisdiction

[8] The respondent takes the position that the Court of Appeal lacks jurisdiction to entertain the appeal. Section 7 of the Partition Act provides that “An appeal lies to the Divisional Court from any order made under this Act.”

[9] In response to the obvious jurisdictional problem, the appellant pointed to other cases where the Court of Appeal has heard an appeal from a final order of the Superior Court of Justice for the sale of a matrimonial home.

[10] However, none of the cases cited provides authority for the Court of Appeal to assume jurisdiction in this appeal.

[11] In several of the cases relied on by the appellant, the appeal from one or more parts of the order lay to the Court of Appeal, while the appeal from another part of the order lay to the Divisional Court. In these cases, the Court of Appeal had jurisdiction pursuant to s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Section 6(2) provides that “the Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal.” See Buttar v. Buttar, 2013 ONCA 517 and Slaughter v. Slaughter, 2013 ONCA 432. See also Barker v. Barker, 2011 ONCA 447, where the application judge dismissed an application for partition and sale of a matrimonial home under the Partition Act, but ordered the husband to transfer his 50 percent interest in the property to the wife on specified terms. In the present case, the only matter under appeal is the order for sale under the Partition Act.

[12] At least one of the other cases cited was first appealed to the Divisional Court, and then to the Court of Appeal: See Martin v. Martin (1992), 1992 CanLII 7402 (ON CA), 8 O.R. (3d) 41 (C.A.).

[13] In the remaining cases, the court did not address its jurisdiction in light of s. 7 and the question seems not to have been raised. Three of these, Ames v. Bond (1992), 1992 CanLII 14045 (ON CA), 39 R.F.L. (3d) 375 (Ont. C.A.); Laurignano v. Laurignano, 2009 ONCA 241; and Binkley v. Binkley (1988), 1988 CanLII 8717 (ON CA), 14 R.F.L. (3d) 336 (Ont. C.A.) are brief oral endorsements. In Laurignano and Binkley there is so little detail, it is even unclear whether the motions judges had made the original orders for sale under the Partition Act. In Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (C.A.), the court did entertain an appeal from an order under the Partition Act but the issue of the court’s jurisdiction seems not to have been raised and the court did not address it.

[14] The issue of jurisdiction has been raised in this case and the parties made extensive submissions regarding it.

[15] Counsel for the appellant could point to no case in which the Court of Appeal has concluded an order made under the Partition Act may be appealed directly to the Court of Appeal.

[16] In the alternative, counsel for the appellant submits the motions judge acted without jurisdiction in making the order in this case and an appeal lies to the Court of Appeal to correct his jurisdictional error. He points out that, in Silva, the Court of Appeal stated that an application under the Partition Act should not proceed where it can be shown that it would prejudice the rights of either spouse under the Family Law Act. He submits that the reasons of the motions judge show he gave no consideration to the outstanding matrimonial issues and whether the appellant’s rights would be prejudiced by an order for sale. Hence, he submits, the motions judge had no jurisdiction to make the order that he did. An appeal lies to the Court of Appeal, he submits, to correct a judge of the Superior Court who has acted without jurisdiction.

[17] We do not accept this argument. The Court of Appeal made clear in Silvathat the Family Law Act does not oust the court’s jurisdiction under the Partition Act. In fact, in Silva, the court upheld a pre-trial order for partition and sale under the Partition Act. The motions judge did not act without jurisdiction.

[18] The sale order expressly states that it is pursuant to the Partition Act. This is the only provision of the order from which the appellant appeals. We conclude that an appeal from the order of the motions judge lies to the Divisional Court pursuant to s. 7 of the Partition Act. This appeal was brought to the wrong court. Ordinarily, we would order it transferred to the Divisional Court under s. 110 (1) of the Courts of Justice Act. However, the exceptional circumstance in this case is that the trial of the matrimonial proceeding is scheduled for April 21, 2014. In these special circumstances, the Chief Justice of the Superior Court of Justice has agreed to designate us as a panel of the Divisional Court to hear and determine this appeal.

C. The merits

[19] The appellant submits that the motions judge erred in law by ordering the sale of the matrimonial home before trial without considering how such an order would prejudice the appellant’s family law claims. In effect, the appellant submits that the motions judge applied the ordinary civil standard for the partition and sale of jointly held property rather than the family law standard for the sale of a matrimonial home before trial. If the motions judge did consider the family law issues, the appellant submits that the reasons of the motions judge are inadequate to permit appellate review. Finally, the appellant submits the motions judge committed overriding and palpable errors by misapprehending the evidentiary record and by accepting the respondent’s claim that he was in need of immediate funds.

[20] The respondent accepts that before making a pre-trial order for the sale of a matrimonial home under the Partition Act in a family law proceeding, the court should consider whether or not granting the order would cause undue prejudice to either party’s reasonably claimed substantive rights. While the motions judge’s reasons are brief, a judge is presumed to know the law and the judge should be presumed to have applied this principle. The respondent submits it is obvious that the motions judge resolved the factual issues in favour of the respondent. The motions judge had before him affidavits, factums and financial statements of the parties. His comment that the respondent was in need of funds shows that he rejected the appellant’s position that he had income and equity in commercial property he could draw upon. According to the respondent, the record before the motions judge established that the appellant was not working and could not maintain the home, which was in need of repairs. Only one teenage child would be disrupted by the sale. The respondent submitted that the motions judge must have been persuaded that the likely outcome at trial would be that the appellant would not be able to purchase the respondent’s share of the home.

D. Analysis

[21] The motions judge did not explicitly address the likelihood that the sale would prejudice the rights of the appellant under the Family Law Act nor did he indicate how he resolved the parties' conflicting positions as to whether the respondent had made proper financial disclosure.

[22] From a practical perspective, the trial in these proceedings is scheduled to begin on April 21, 2014. Since the motion was heard, the respondent has been able to live without any funds from the sale of the home. The appellant has been able to live in the home and the ongoing expenses associated with the home have been met. Even if the order for partition and sale were upheld by this court, it is unlikely the house would be sold before trial. If the house were sold, rule 66.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 would require that the monies be paid into court. The respondent would not be able to receive any funds before trial.

[23] For these reasons, I would allow the appeal, set aside the sale order, and allow this and any other remaining issues between the parties to proceed to trial. The respondent has been successful on the question of jurisdiction and the appellant on the merits. I would fix the costs of the appeal in favour of the appellant in the amount of $7,500.00.

Released: April 2, 2014

(RGJ) “R.G. Juriansz J.A.”

“I agree S.E. Pepall J.A.”

“I agree K. van Rensburg J.A.”