CITATION: Silantyeva v. Sidorov, 2025 ONSC 6807

OSHAWA DIVISIONAL COURT FILE NO.: DC-25-00001719-0000

NEWMARKET SUPERIOR COURT FILE NO.: FC-24-1414-00

DATE: 20251204

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: YEKATERINA SILANTYEVA, Applicant (Respondent)

AND:

MIKHAIL MIKHAILOVYCH SIDOROV, Respondent (Appellant)

BEFORE: The Hon. Justice S.E. Fraser

COUNSEL: Arkadi Bouchelev, Counsel for the Appellant (Moving Party)

Tilda Roll and Nathaniel Belmont, Counsel for the Respondent (Responding Party)

HEARD: December 3, 2025 (by videoconference)

ENDORSEMENT

I. Nature of the Application

[1] The Appellant (Respondent in the underlying proceeding) applies for a stay pending appeal of an Order made November 3, 2025, directing the sale of the matrimonial home.

[2] The Appellant alleges that there is a serious issue to be tried regarding the correctness of the Order. He asserts that the motion judge erred in ordering the sale of the matrimonial home on an interim motion where the Partition Act, R.S.O. 1990, P.4, had not been pled in either the Application or the Notice of Motion requesting the sale.

[3] The parties agree on the test for stay pending appeal.

[4] The parties also agree that the Respondent (Applicant in the underlying proceeding) did not explicitly state, in either her Application or Notice of Motion, that she was relying on the Partition Act. The Respondent’s position is that it was at all times known that she would be seeking the sale of the matrimonial home, she requested a sale of the property in her Application and the issue was conferenced prior to the motion.

II. Issue

[5] The single issue on this Application is whether a stay pending appeal should be granted. The test is similar to an interlocutory injunction. It requires that I consider:

a. Whether the appeal raises a serious issue that the decision is wrong;

b. Whether the Appellant will suffer irreparable harm if the stay is not granted; and

c. Whether the balance of convenience favours a stay.

See: RJR-McDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311; Lefebvre v. Lefebvre, 167 OAC 85, [2002] OJ No 4885 (QL), at para. 6.

[6] The three parts of the test are interrelated. The strength of one can compensate for the weakness of another.

III. Analysis

[7] I first address the decision below and then consider the three-part test for a stay pending appeal.

A. Decision

[8] The parties are married, separated on May 1, 2022, and the Appellant remained in the home after separation. There are two children of the marriage who are young teenagers. There is a shared parenting plan, and the parties have equal parenting time.

[9] The parties state that they have limited to no income. They borrow to meet their needs. The Respondent’s position on the motion was that she needed to access the equity in the house through its sale.

[10] The Appellant wishes to buy the Respondent out of the home and keep it. He asserts that to do so, he must sell a second property, where the Respondent is presently residing. The second property is not owned by either party but is subject to a trust agreement.

[11] The motion judge recognized that on an interim motion for sale, the sale could only be ordered under the Partition Act. She considered two cases which the Applicant relied on to show that the failure to plead the Partition Act was fatal to the motion.

[12] In the first, Kereluk v. Kereluk, the motion judge noted that the judge held that even if the motion had been brought under the Partition Act, it would be granted.

[13] The motion judge distinguished the second, Lall v. Lall, 2012 ONSC 2021. In that case, the trial was two months away. Justice Price held that an order for interim sale of a matrimonial home pursuant to the Partition Act will normally not be made where it would prejudice the other spouse’s right to assert an ownership or possessory interest in the property at trial. He adopted the test in Kereluk v. Kereluk, supra, that is, whether there is a genuine issue for trial regarding the competing claims asserted by the other spouse.

[14] The motion judge set out her authority for ordering a sale prior to trial, even where the Partition Act and not been pleaded.

[15] First, she found that there is binding authority providing that it is a prima facie right of a joint tenant to partition or sale of lands and that that partition and sale will only be denied where there was evidence of malicious, vexatious or oppressive conduct. See: Davis v. Davis, 1953 CarswellOnt 106 (C.A.). She noted that Martin v. Martin (ONCA) contemplates orders for sale before trial.

[16] Next, she considered case law in which the court permitted a sale where the Partition Act had not been pleaded. See: Barbieri v. Vistoli, 2019 ONSC 6385, at para. 37; Sidhu v. Kaur, 2024 ONSC 6008.

[17] Third, she relied on those cases together with the primary objective of the Family Law Rules which is to enable the Court to deal with cases justly. She found that judges have a duty to promote the primary objective by active case management. She held that it would be an affront to the resources of the Court to deny the motion on the basis of the pleading, only for the Notice of Motion to be amended and the motion rescheduled.

[18] Last, after a thorough consideration of the law, she considered both that the Applicant had not made a prima facie claim for exclusive possession and she appeared satisfied the children had no special or extraordinary need connected to the home. She stated at para. 72:

The Court is satisfied that the matrimonial home should be listed and sold on most of the terms and conditions listed in the Applicant’s draft Order filed on October 22, 2025 (the deadline for listing the home is being extended to account for the time since the motion was heard) for the following reasons:

a. The Applicant is a joint tenant and has a prima facie right to have the home sold;

b. The Respondent has a corresponding obligation to cooperate with the sale of the home;

c. No evidence was led to suggest that the children experienced any extraordinary or special needs connected to the home;

d. No evidence was led to establish a prima facie claim of exclusive possession;

e. The Applicant was the only party entitled to an equalization payment;

f. The Respondent had over three years to buy out the Applicant's share of the home, and he failed to do so. This Court does not have jurisdiction to force a joint tenant to sell their share of the property to the other joint tenant.

g. The Respondent indicated his intention to sell the second property, displacing the Applicant and the children, increasing the need for the Applicant to have access to her equity; and

h. There was no evidence of the Applicant having a malicious or vexatious intention to disrupt the lives of the children and the Respondent.

i. There was no evidence of oppression.

[19] She further held that both parties stand to benefit from the sale of the home and the availability of their equity as the home was unencumbered at the time of the motion.

[20] I now move to consideration of the three-part test.

B. Is there a serious issue that the motion judge was wrong?

[21] The first part of the test is a low threshold. It can be met if the question raised by the appeal is not “frivolous or vexatious”.

[22] The Appellant asserts that there is a serious issue that the motion judge was wrong in permitting the sale. In support of his position, the Appellant relies on the conflicting decisions in other cases set out above and that the Partition Act was not pleaded.

[23] The Appellant asserts that the cases relied upon by the motion judge are distinguishable as in Barbieri v. Vistoli, supra, the Partition Act was pleaded in an amended notice of application. In Sidhu v. Kaur, supra, the applicant asked for partition and sale without pleading the statute. I note that in the case before me, the Respondent asked for a sale of family property in her Application.

[24] The Appellant points to other conflicting authority: Dulku v. Dulku, 2016 ONSC 6409, at para. 116, Oppong Nketiah v. Oppong Nketiah, 2021 ONSC 4807 among them. In my view, those are distinguishable. In Dulku, the responding party had exclusive possession. In Oppong, the party resisting the sale was claiming exclusive possession and the pleadings read generously did not set out a clear intention for the sale of the home.

[25] The Appellant asserts that he was entitled to rely on the Respondent’s Application which seeks:

An Order that the applicant will transfer her interest in the matrimonial home at 75 Manor Hampton Road, East Gwillimbury, Ontario LPN OP9 (“matrimonial home”) to the respondent, in exchange for one-half of the value of the matrimonial home, or in the alternative, that it be sold, with the respondent's share to be held in trust.

[26] However, the alternative relief is that the property be sold.

[27] The Respondent to the appeal argues that the decision of the motion judge reveals no obvious error. The Appellant has established that it could be argued that there is conflicting authority. I find that the appeal raises a serious issue that is neither frivolous nor vexatious and that the Appellant has met the low threshold at this step.

C. Will the Appellant suffer irreparable harm?

[28] This part of the test concerns whether the Appellant will suffer irreparable harm if the decision is not stayed pending appeal. Irreparable harm is harm that cannot be quantified in monetary terms or which cannot be cured. See: Ontario v. Shehrazad Non Profit Housing Inc. 2007 ONCA 267, at para. 25.

[29] I find the Appellant has not met this part of the test on a balance of probabilities. There is nothing unique about the property. The Appellant has put forth no evidence in this regard. I contrast with the decision in Jurewicz v. Jurewicz, 2015 ONSC 7563, relied upon by the Appellant, where the court found at para. 48, that property at issue could be subdivided, such that there would be irreparable harm.

[30] In this case, any harm is monetary and thus not irreparable.

[31] I find that the Appellant has failed to establish this ground.

D. Balance of Convenience

[32] The balance of convenience analysis is about the harm suffered by each party.

[33] I find the balance of convenience does not favour a stay.

[34] Favouring a stay is that it appears that the appeal could be heard in a timely way. It was said that the earliest date for the appeal is January 16, 2026. The parties are scheduled to appear before Justice Charney on December 5, 2025 for a case conference to schedule and timetable the appeal.

[35] However, I find that the Respondent would suffer prejudice by further delay. It appears that the Respondent requires the equity in the home to meet her living expenses. She is in debt. The Appellant is applying for partition and sale of the second property which could interfere with the Respondent’s ability to live at the second property.

[36] Finally, the motion judge found after considering the matter that it would benefit both parties for the house to be sold.

[37] Considering these factors, I find that the balance of convenience lies with the Respondent and a denial of a stay.

IV. Disposition

[38] I have considered the factors separately. They are not watertight compartments. However, because the Appellant has failed to demonstrate irreparable harm, I find that he has not met his burden as the weakness on that factor cannot be compensated for by the strength of others.

[39] The motion for a stay of the motion judge’s Order dated November 3, 2025 pending appeal to this Court is denied.

[40] The parties have provided their costs outlines. They are urged to resolve costs by December 5, 2025. If they cannot, I will decide based on written submissions. The Respondent shall provide her written submissions by December 12, 2025 limited to three double-spaced pages together with any offers to settle which might bear on the costs. The Appellant shall provide his response by December 19, 2025, and is subject to the same limitations. They shall be sent to my attention through my Judicial Assistant at Robyn.Pope@ontario.ca and uploaded through the portal.

[41] I thank counsel for their helpful submissions.

Justice S.E. Fraser

Date: December 4, 2025