CITATION: Niranjan v. Rajaghatta, 2020 ONSC 1321
DIVISIONAL COURT FILE NO.: FC-16-2651 and DC-19-2480
DATE: 20200228
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Penny, Labrosse JJ.
BETWEEN:
HEMA NIRANJAN
Applicant (Respondent)
– and –
NIRANJAN RAJAGHATTA
Respondent (Appellant)
Wade Smith, for the Applicant (Respondent)
Self-represented
HEARD: February 28, 2020
ORAL REASONS FOR DECISION
ASTON J.
[1] Hema Niranjan brought a motion in this case which resulted in a temporary Order by MacEachern J., on September 25, 2018. That Order:
Required Niranjan Rajaghatta (the Appellant husband) to provide extensive detailed disclosure (as set out in paras. 1 to 6 of the Order);
Required him to continue paying interim child support of $400 monthly;
Ordered the sale of the jointly owned home at 13 Brookstone Street, Ottawa on terms and conditions set out in paras. 8-9 of the Order; while also,
Restraining Hema Niranjan from alienating or encumbering the equity in her home at 98 Fairlop Way, Ottawa.
[2] The husband’s original Notice of Appeal only challenged the Order for the sale of 13 Brookstone. His Notice of Appeal was served before April 30, 2019, the extended time that had been granted to him. It is properly before the Court. He has subsequently served an Amended Notice of Appeal with a long shopping list of other claims for relief. There is no Order permitting him to do so. The Amended Notice of Appeal requests relief that is not the subject of any prior Order below. It appears that most of the relief sought, if not all of it, was the subject of a cross-motion he tried to bring when the wife’s motion was heard in July 2018. However, his cross-motion was not heard then because he had failed to comply with the filing deadlines under the Family Law Rules. His Amended Notice of Appeal is not properly before this Court.
[3] Our jurisdiction to entertain the original Notice of Appeal is found in s. 7 of the Partition Act and s. 19(1)(a) of the Courts of Justice Act. The Order of September 25, 2018 is an interlocutory order in some respects, but the paragraphs founded upon the Partition Act, that is to say paras. 8, 9 and 10, are actually a final Order. This is confirmed in the Endorsement of this Court dated April 12, 2019, granting the extension of time for appeal.
[4] The sole issue on this appeal is whether to set aside paras. 8-10 of the September 25, 2018 Order for the sale of 13 Brookstone Street.
[5] The standard of review is as set out in Housen v. Nikolaisen, 2002 SCC 33:
• On questions of law the standard is correctness.
• On questions of fact the standard is palpable and overriding error.
• On questions of mixed fact and law there is a spectrum. When the impugned error involves an extricable legal principle the standard of review is correctness. With respect to the application of correct legal principles to the evidence the standard is palpable and overriding error.
[6] Because the decision below engages judicial discretion in deciding whether to grant or refuse the request for sale, a high degree of deference is to be afforded the original decision. The degree of deference is described by the Supreme Court of Canada in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, at para. 27:
A discretionary decision of a lower court will be reversible where that court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice. Reversing a lower court’s discretionary decision is also appropriate where the lower court gives no or insufficient weight to relevant considerations. (citations omitted)
[7] This standard was recently confirmed by the Court of Appeal for Ontario: 1944949 Ontario Inc. (OMG ON THE PARK) v. 2513000 Ontario Ltd., 2019 ONCA 628, at para. 13.
[8] A joint owner of real property has a prima facie right to an Order for the sale of the property unless to do so is prejudicial to the other owner or would create hardship or injustice. See Martin v. Martin, 1992 (ON CA), [1992] O.J. No. 656 (Ont. C.A.) and Silva v. Silva, 1990 (Ont. C.A.).
[9] In Martin, at para. 26, the Court of Appeal stated that an Order directing the sale of a matrimonial home before trial should only be made where the circumstances of the case make it appropriate in all the circumstances and that “before trial such orders are not granted as a matter of course”. The Motion Judge specifically referenced both the Martin and Silva decisions. She identified the proper legal test in her reasons.
[10] The Motion Judge was aware that the wife withdrew approximately $231,000 from the available lines of credit secured against the Brookstone property and used those funds to purchase her own residence when she and the child of the marriage moved out of 13 Brookstone in July of 2015. The Motion Judge recognized that this could possibly be prejudicial to the husband’s interests. However, she found that the possible prejudice could be addressed by restraining the wife from selling or further encumbering her new home, thereby preventing erosion of the equity in that home pending a final resolution of the case.
[11] The Motion Judge took into account the husband’s refusal or inability to remove the wife’s name from the existing encumbrances on title to 13 Brookstone, his lengthy delay in providing proper financial disclosure and the fact that the husband resides in a jointly owned property without having to make any mortgage payments while the wife is paying the interest of the funds withdrawn by her on the lines of credit in 2015.
[12] The Motion Judge recited the husband’s grounds for opposing the order for sale at para. 52 of her reasons. She found his supporting evidence was “not compelling”. She also referenced the inconsistency in the husband’s position: first, that he cannot afford to keep the property if his financial circumstances are as bad as he claims them to be and; second, that his claim of prejudice under s. 21 of the Family Law Act is inconsistent with his assertion that the parties separated in 2005. A property purchased post separation cannot qualify as a matrimonial home as defined in the Family Law Act.
[13] Although not specifically mentioned in the reasons, it is apparent that this litigation still has a long way to go and the prospects of settlement seem somewhat dim. The parties have been separated many years already. Those factors also weigh against the Appellant’s position.
[14] The Appellant did not provide any admissible or reliable evidence on the motion that could support his claim of prejudice, hardship or inequity. His repetition and expansion of unproven reasons such as fraud, criminality, breach of his Charter rights and the like in his submissions to this Court are without merit.
[15] The Motion Judge articulated the proper test. She made findings facts supported by evidence. We see no error in her application of that test to the facts as found and the circumstances of this case.
[16] There is no basis upon which to interfere with the discretion of the Motion Judge in ordering the sale given the standard of review already alluded to.
[17] The appeal is dismissed.
Justice D. Aston
Justice M. Penny
Justice M. Labrosse
Date of Reasons for Judgment: February 28, 2020
Date of Release: February 28, 2020
CITATION: Niranjan v. Rajaghatta, 2020 ONSC 1321
DIVISIONAL COURT FILE NO.: FC-16-2651 and DC-19-2480
DATE: 20200228
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Penny, Labrosse JJ.
BETWEEN:
HEMA NIRANJAN
Applicant (Respondent)
– and –
NIRANJAN RAJAGHATTA
Respondent (Appellant)
ORAL REASONS FOR Decision
Justice D. Aston
Justice M. Penny
Justice M. Labrosse
Date of Reasons for Judgment: February 28, 2020
Date of Release: February 28, 2020