CITATION: Gibson v. Mowery, 2024 ONSC 5612
DIVISIONAL COURT FILE NO.: DC-24-0036
DATE: 2024 10 08
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Heeney, Corbett and Sheard JJ.
BETWEEN:
GIBSON, Peter
- and -
MOWERY, Coralee
)
) DEOL, Kulvinder, for the Appellant
)
Appellant )
)
) KIM, Andrea, for the Respondent
)
Respondent )
)
) HEARD: October 8, 2024 in person
ENDORSEMENT
[1] Despite counsel's able arguments, we conclude that the appeal should be dismissed.
[2] While we agree with the Appellant that the motions judge emphasized the Partition Act, rather than the law under the Family Law Act respecting a temporary order for sale of a matrimonial home, we would not interfere with her decision to order the sale. We are satisfied that the motion judge considered
the applicable legal principles and relevant factors, and the record below supports the motion judge's exercise of discretion to order sale of the matrimonial home now.
[3] The Appellant is living in the jointly-owned matrimonial home and has been paying no child or spousal support to the Respondent, taking the position that his payment of joint carrying costs on mutually-owned investment properties was sufficient to discharge his responsibilities. The non-payment of child support in the absence of a court order or agreement left the Appellant vulnerable to criticism and the motion judge's finding that he was not acting with clean hands. With respect, the Appellant's argument that he cannot pay support because of high carrying costs undercuts the premise of his overall argument that the parties can afford to retain the matrimonial home pending further litigation.
[4] The Appellant's conduct belies the argument that there were readily available alternatives to sale of the matrimonial home. On the Appellant's account of the parties' assets and liabilities, incomes, and other circumstances, it does not seem probable that either party will be in a position to purchase the matrimonial home and prolonging their ownership of the matrimonial will serve to prolong a status quo that is inequitable. The Appellant's description of the parties' financial affairs as "complicated" and "difficult to disentangle" raised the specter of long contentious litigation - this was not a case where the Appellant was acknowledging a need to sell the home but was arguing for a different timetable for the sale.
[5] It is inevitable that this home will have to be sold, and we do not accept the Appellant's argument that he had an arguable basis to occupy the matrimonial home, with the benefit of the Respondent's equity, while the Respondent should
live in markedly reduced circumstances, pending some ill-defined future sale of the home.
[6] The appeal is dismissed with costs of $12,000, inclusive, payable by the Appellant to the Respondent within thirty (30) days.
Heeney J.
Corbett J.
Released: October 8, 2024 Sheard J.
CITATION: Gibson v. Mowery, 2024 ONSC 5612
DIVISIONAL COURT FILE NO.: DC-24-0036
DATE: 2024 10 08
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Heeney, Corbett and Sheard JJ.
BETWEEN:
GIBSON, Peter
Appellant
- and-
MOWERY, Coralee
Respondent
ENDORSEMENT
Released: October 8, 2024