Court of Appeal for Ontario

Date: 2020-05-27 Docket: C67550

Before: Feldman, Lauwers and Huscroft JJ.A.

Between: Susan Barry, Applicant (Appellant)

And: Marc Andrew Barry and James Michael Barry, Respondents

Counsel: Michael H. Murray, for the appellant Marc Andrew Barry, acting in person

Heard: In writing

On appeal from the order of Justice Timothy G. Price of the Superior Court of Justice, dated September 11, 2019.

Reasons for Decision

[1] Following a four-day trial to resolve financial issues arising from marital breakdown, the trial judge ordered that the respondent owed the appellant an equalization payment of $226,670.96. The order also provided that, after a fair market value assessment, the respondent had the “right to conclude the purchase” of the appellant’s interest in the jointly-owned matrimonial home within 30 days of the date of the release of the trial judge’s reasons, and to obtain the release of the appellant from her obligations under the existing first mortgage registered against the matrimonial home.

[2] The appellant seeks to vary the trial judge’s order to omit the respondent’s right to conclude the purchase of the matrimonial home. She seeks the sale of the matrimonial home and division of its net proceeds.

[3] The respondent initially informed the court that he would not be participating in the appeal. In a letter to the court, he stated that the appeal belonged in the Divisional Court, and asserted that he was not properly the respondent and that it was incumbent on the trial judge to explain his order. Just prior to the date scheduled for consideration of this appeal, the respondent filed a factum and reiterated these positions, and in addition took issue with the conduct of the appellant and her counsel throughout the proceedings. He stated that he had been required to live in a trailer as the matrimonial home sat vacant while the appellant lived with her mother, and sought compensation for his expenses and hardship.

[4] Having considered the positions of the parties, we allow the appeal for these reasons.

[5] First, the appeal is properly heard in this court rather than the Divisional Court. This court has jurisdiction to hear this appeal pursuant to s.6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (CJA) as an appeal from a final order of a judge of the Superior Court. [1]

[6] Second, the trial judge’s order speaks for itself. Trial judges do not defend their decisions on appeal. The respondent is entitled to defend the trial judge’s order. In any event, the appellant bears the burden of establishing that the trial judge’s decision should be varied on appeal.

[7] This case raises a single issue: the arrangements for selling the matrimonial home. The appellant wanted to sell the home and divide the net proceeds of the sale, while the respondent wanted to purchase the appellant’s interest in it. The current value of the home was not established at trial. The trial judge granted the respondent the right to purchase the matrimonial home within 30 days from the release of his decision after obtaining a fair market value assessment.

[8] The appellant submits that the trial judge erred in making this order. We agree.

[9] As this court explained in Martin v. Martin, [1992] 8 O.R. (3d) 41 (C.A.), a right of first refusal is a substantive right that has economic value. It falls outside the boundaries of what is ancillary or what is reasonably necessary to implement the order for sale of the matrimonial home. It distorts the market for the sale of the matrimonial home by eliminating the need to compete against any other prospective purchaser, thus potentially reducing the amount the joint owning spouse realizes on the sale. In the absence of consent, the right of first refusal should not have been granted in this case. If the respondent seeks to purchase the matrimonial home, he must compete with any other interested purchaser.

[10] Accordingly, the appeal is allowed.

[11] Section 3 of the order is vacated. Section 4 of the order is replaced with the following provision: “The matrimonial home shall be listed for sale immediately.”

[12] The appellant is entitled to costs on the appeal fixed at $7,500, inclusive of taxes and disbursements.

“K. Feldman J.A.” “P. Lauwers J.A.” “Grant Huscroft J.A.”

[1] Part I of the Family Law Act, R.S.O. 1990, c. F.3, which deals with equalization of net family properties, does not have an appeal provision captured by the deeming provision in s. 21.9.1 of the CJA, which directs certain final appeals from decisions of the Family Court to the Divisional Court.