CITATION: R.M. v. A.M., 2016 ONSC 7900

COURT FILE NO.: 04891/13

DATE: 20161215

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

R.M.

Diane Barker, for the Applicant

Applicant

• and -

A.M.

Anamaria Maghetiu, for the Respondent

Respondent

HEARD: December 13, 2016

REASONS FOR DECISION ON MOTIONS

Conlan J.

I. INTRODUCTION

The Background

1R.M., the Applicant mother (”Mother”), and A.M., the Respondent father (“Father”), were married in July 1995 and separated in April 2013.

2The Mother is in her forties and the Father in his fifties.

3They have two children, both boys, who are 18 and 16 years old.

4The young men live with the Mother at the matrimonial home in Tiverton, Ontario, which the parties agree is currently worth about $260,000.00 (there is a professional appraisal to that effect).

5Besides a fairly brief period of time, post-separation, when the Mother and the children lived in a shelter, they have been residing in Tiverton since the marital break-up, while the Father has not.

6The matrimonial home was built for the family. The children have lived there for many years now.

7Both young men are interested in the film industry and plan to attend college to pursue those studies.

8The Father lives alone in Kincardine, Ontario, which is not that far from Tiverton. He resides in a home that he bought after the parties separated and which he currently owns debt-free.

9The Mother works at Tim Horton’s and earns a modest employment income. Her Financial Statement sworn in August 2016 shows a gross annual income of about $39,000.00.

10The Father is disabled from a serious motor vehicle accident that he sustained in September 2010. He used to be a contractor/electrician at Bruce Power. He has been unable to work since the accident. His Financial Statement sworn in June 2016 shows a gross annual income of approximately $13,500.00.

11Prior to separation, the Father received a settlement from the accident - $330,000.00 plus some other much smaller payments.

The Procedural History, and the Relief Being Sought on the Motions

12In August 2013, the Mother commenced the within proceeding by way of an Application. She sought a divorce, custody of the boys, child and spousal support, equalization of net family properties, and exclusive possession of the matrimonial home.

13The Father was initially non-responsive. Finally, at the doorstep of an uncontested trial, he began to participate. His Answer was delivered in November 2014.

14Not much happened over the next year and a half.

15In May 2016, Price J. granted a request by the Mother for interim, without prejudice exclusive possession of the Tiverton home. A long motion hearing date was scheduled for the end of June 2016.

16At the return date, Dawson J. heard some of the argument until counsel agreed to proceed to a conference to try to settle the issues.

17The Settlement Conference was held before Gray J. in August 2016 and was unsuccessful.

18As Justice Dawson was unavailable to remain seized of the matter, through the office of the Regional Senior Justice, I became involved.

19On December 13, 2016, in Walkerton, I heard two Motions.

20The first was brought by the Mother and sought exclusive possession of the matrimonial home.

21The second was brought by the Father and sought a sale of the matrimonial home, with the net proceeds to remain in trust, and/or occupation rent payable by the Mother commencing in November 2013.

The Materials Filed

22Extensive affidavit material, facta and books of authorities were filed on both sides.

23Each party is loath to miss an opportunity to respond to something said by the other.

The Hearing of the Motions, and the Positions of the Parties

24Essentially, the position of the Mother is that it would be fundamentally unfair to disrupt the status quo and effectively render her and the children homeless by ordering the Tiverton house to be sold.

25The Father argues, in a nutshell, that his right to partition and sale of the jointly held matrimonial home must trump any speculative assertion that the Mother may someday be in a position to buy-out his interest and stay there with the boys.

26In his counsel’s oral submissions at Court on December 13^th, the Father’s position softened in extending a willingness to release $50,000.00 out of the net sale proceeds to his sons and their Mother so that they do not end up on the street.

The Issues

27Three questions arise.

28First, should the Mother be granted temporary exclusive possession of the matrimonial home?

29Second, should the home be ordered to be sold?

30Obviously, the first two questions are intertwined.

31Third, should the Mother be ordered to pay occupation rent?

II. ANALYSIS

The Mother’s Motion – Exclusive Possession of the Matrimonial Home vs. the Father’s Motion – Sale of the Home

32I agree with the Mother. The “without prejudice” portion of Justice Price’s May 2016 Temporary Order is removed such that, until judgment after trial or a final resolution of the case, she is granted exclusive possession of the matrimonial home.

33The Father’s request for a sale of the home is denied.

34Counsel filed a wealth of jurisprudence, but only two decisions are necessary to cite on the law.

35First, in Stafford v. Rebane, 2004 34080 (ON SC), a case relied upon by the Mother, Justice Tulloch, as His Honour then was, summarized the legal landscape and applied the principles to the facts in that case as follows, at paragraphs 28-31.

28In determining the issue with respect to the matrimonial home, I am guided by the provisions

of s. 19 and 24 of the Family Law Act:

Section 19 of the Family Law Act states:

19. (1) Both spouses have an equal right to possession of a matrimonial home.

Section 24 of the Family Law Act states:

24. (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse's right of possession), the court may on application, by order,

(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home …

(2) The court may, on motion, make a temporary or interim order under clause 1(b) …

(3) In determining whether to make an order for exclusive possession, the court shall consider,

(a) the best interests of the children affected;

(b) any existing orders under Part I (Family Property) and any existing support orders;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children.

(4) In determining the best interests of a child, the court shall consider,

(a) the possible disruptive effects on the child of a move to other accommodation; and

(b) the child's views and preferences, if they can reasonably be ascertained.

29In the case at bar, Ms. Stafford seeks partition and sale of the matrimonial home and Dr.

Rebane seeks interim exclusive possession. Dr. Rebane argues that the claims he intends to put forward at trial will be prejudiced by immediate sale. Furthermore, it is in the best interests of the children for him to get an order for interim exclusive possession as the children have had exclusive

possession of the house since August 2003 when Ms. Stafford moved out.

30In considering all the circumstances in the case, as well as the fact that most of the Family

Law Act issues are not yet resolved, I am denying Mrs. Stafford’s request for partition and sale of the matrimonial home. I am directed by the decision of the Court of Appeal in Martin v. Martin (1992), 1992 7402 (ON CA), 38 R.F.L. (3d) 217 at 226 (O.C.A.), where the court stated:

Although there is clear jurisdiction under the Partition Act to order the sale of the parties' matrimonial home I do not wish to be taken to have endorsed the wholesale issuance of these orders. In my view, an order directing the sale of a matrimonial home before trial should only be made in cases where, in all of the circumstances, such an order is appropriate. Orders for the sale of a matrimonial home made before the resolution of Family Law Act issues (particularly the determination of the equalization payment),

should not be made as a matter of course. See Binkley v. Binkley (1988), 1988 8717 (ON CA), 14 R.F.L. (3d) 336 (Ont. C.A.). In addition, spousal rights of possession (s. 19) and any order for interim exclusive possession should be

taken into account.

31I also find that an order for partition and sale would prejudice Dr. Rebane’s claim at trial as

he wishes to have exclusive possession of the home until their youngest son Jonathan has finished high school in four and one-half years. I am also prepared to accept the testimony of Dr. Rebane that it would be harmful to the children if they were forced to leave the home at this time. The children have

lived in the home since 1989. Jonathan’s school is a five-minute walk away. The home provides stability and continuity for the children. As well, it is only five minutes away from Dr. Rebane’s job. Accordingly, for all the above reasons, I will make an order granting Dr. Rebane interim exclusive possession of the matrimonial home.

36Second, some fourteen years earlier, in Silva v. Silva, 1990 6718 (ON CA), 1990 Carswell Ont 319 (C.A.), a case relied upon by the Father and urged by his counsel to be accepted as the leading governing authority on point, the highest Court in this Province dealt with the friction between the family law legislation and the right to partition and sale and set out the following, at paragraphs 15, 23, 24 and 26.

Cases subsequent to Hutcheson agreed that the courts had discretion to refuse to grant an order for partition and sale, but limited that discretion to cases where the applicant had behaved maliciously, oppressively or with a vexatious intent toward the respondent. In Szuba v. Szuba, 1950 306 (ON SC), [1951] 1 D.L.R. 387, [1950] O.W.N. 669 (H.C.J.), after noting that Hutcheson had announced a discretion under s. 2, but had not defined the limits of it, the court examined the ambit of judicial discretion under the 1937 Partition Act. It determined that an order for partition and sale under s. 2 is as of right, provided that the applicant acts without vexation or oppression and comes to the court with "clean hands" (at p. 673 O.W.N.). In Brown v. Brown, 1952 296 (ON SC), [1953] 1 D.L.R. 158, [1952] O.W.N. 725 (H.C.J.), the court similarly acknowledged the discretion enunciated in Hutcheson and adopted the limits of discretion imposed in Szuba (at p. 727 O.W.N.). The court, in that case, also stated [p. 726 O.W.N.] that it "is common ground" that the discretion exercised under the Partition Act must be exercised judicially and based upon the circumstances of each case. In a later case, Davis v. Davis, 1953 148 (ON CA), [1954] O.R. 23, [1954] 1 D.L.R. 827 (C.A.), Laidlaw J.A. described the nature of the discretion under the Partition Act. At p. 29 O.R. of his judgment, he stated that, in spite of the discretion under s. 2, joint tenants have a prima facie right to partition and sale so that the courts must compel such a sale in the absence of sufficient reasons not to do so.

The F.L.A. authorizes the court to do whatever is necessary with the collectivity of spousal assets to bring about an equal division of them. It should be the statute of first resort in matrimonial disputes, but it is not necessarily the only one. I think it is significant that s. 14(a) of the F.L.A. states that "the fact that property is held in the names of spouses as joint tenants is prima facie proof that the spouses are intended to own the property as joint tenants". This is a recognition of the identical legal title of both spouses to an undivided ownership in the whole of the property. In my opinion, it is wrong to say, as it was said in Scanlan v. Scanlan, that the F.L.A. ousts the jurisdiction of the Partition Act when dealing with jointly owned spousal property. The two statutes are not incompatible, but where substantial rights in relation to jointly owned property are likely to be jeopardized by an order for partition and sale, an application under the Partition Act should be deferred until the matter is decided under the F.L.A. Putting it more broadly, an application under s. 2 should not proceed where it can be shown that it would prejudice the rights of either spouse under the F.L.A.

In the case on appeal, the contemplated partition and sale does not prejudice either spouse's claim with respect to the home under the F.L.A. The wife does not want the home at all and the husband wants the right only to bid on it once it is up for sale. He is entitled to do so under rule 55.06(5). While he wants an unequal division of family assets, any later determination of this claim is irrelevant to the sale of the home as such. His stated concern with respect to an immediate sale is that there will be no longer any security upon which to realize his F.L.A. award. Such a sale also means that the husband will have to finance the purchase by raising one-half of the net purchase price, instead of some lesser sum. I can think of no reason why the husband should hold the house hostage until his claim has been adjudicated. The wife needs the money now and I do not think that his concern about collecting a subsequent award, in the circumstances of the case, amounts to prejudice within the meaning of the case law.

On the facts before us it cannot be said that the husband's case for unequal division is an easy one, but he is entitled to a hearing. However, there is no reason why in the meantime the home should not be sold now and the net proceeds divided equally. The husband and wife can continue with their cross-applications under the F.L.A. and, if the husband is successful, he can attempt to collect a money judgment from his wife in England. There are no equities on his side in this matter and the partition and sale of the home should proceed as soon as a sale can be arranged. There is no point in leaving the proceeds of the sale in court pending the trial of an issue as ordered by Klowak J.

37I in my view, both decisions support the relief being sought by the Mother.

38The Mother, like Dr. Rebane in the case before Tulloch J., as His Honour then was, will be prejudiced by the immediate sale of the Tiverton home as she has included in her Application a claim for exclusive possession of it.

39In addition, it would be in the best interests of the two boys, as it was for the children of Dr. Rebane and Ms. Stafford, for the Mother to have exclusive possession of the matrimonial home. They are comfortable there and have been so for many years, and they are at a crucial stage of their lives (approaching independence) that a change now, pretrial, seems counter-productive.

40Further, as was the situation for Dr. Rebane and Ms. Stafford, the determination of any equalization payment here has not been made and is clouded with much uncertainty, and that is a key factor weighing against the immediate sale of the home.

41Also, borrowing the language used by the Court of Appeal for Ontario in the Silva, supra decision, I find that the Father does not come to this Court with “clean hands”.

42Clearly, his Motion for an immediate sale of the home was retaliatory, at least in part, in that it was brought only after the Mother filed her Motion for exclusive possession.

43In addition, his initial position of having every cent of the net sale proceeds held in trust, effectively depriving the Mother and his sons with affordable shelter, was unreasonable.

44Finally, in Silva, supra, crucial was that the party seeking partition and sale was desperate for the money right away. That is not the situation here. The Father can wait until trial to see what happens with the matrimonial home, which is likely why he did not even seek to receive any of the money from the sale if such was ordered now.

45I do not agree with the Father that a sale of the Tiverton home is inevitable. It is premature to conclude that.

46Ms. Maghetiu argued compellingly that the Court has no authority to order that the Father transfer his half-interest in the jointly held property to the Mother, however, it remains to be seen whether the Mother can afford, at or after trial, to buy him out.

47I also disagree with the Father in submitting the following.

48First, that the Mother’s Motion is a strategic one brought simply to delay the sale of the home. That makes no common sense given that the said relief was prayed for in the originating process started more than three years ago.

49Second, that this is a situation where an immediate sale of the home ought to be ordered in spite of an undetermined equalization payment. There is authority for that, cited nicely at paragraph 41 of the Father’s Factum, however, not where there are cogent reasons for not selling the matrimonial home pretrial, as here.

50Third, that the Mother has no realistic plan to take over sole ownership of the home. She has been approved, conditionally, to assume the line of credit against the property (valued at just under $50,000.00). She is trying to save some money. And she intends to try to persuade the trial judge that she should be permitted to use money otherwise owing to her and the boys for support and/or equalization to buy-out the Father’s interest in the Tiverton home. It may not come to fruition, but it is not “pie in the sky”.

51Fourth, that the Father himself will be prejudiced by the withholding of his request for an immediate sale of the Tiverton property. His counsel gave two examples of that alleged prejudice: (i) he cannot access the capital in the home, and (ii) he cannot rent out the Kincardine house by moving back to Tiverton.

52The first is a burden shared equally by the Mother. The second is untrue – he can occupy part of the Kincardine house and rent out the rest, if he is so inclined.

53Fifth, that the immediate sale of the matrimonial home is appropriate here despite the Mother’s claim in the Application for exclusive possession of it. I agree that the said claim, alone, may not be sufficient to deny the order for partition and sale.

54But there are other reasons as well to grant to the Mother exclusive possession of the Tiverton home: the best interests of the children, the absence of any other Court-ordered support in favour of the Mother or the boys, the fact that the Father is in no worse of a financial position than the Mother, and the lack of any other suitable or affordable accommodation for the Mother and the children, as examples (all factors under the legislation quoted at paragraph 28 of the Stafford, supra decision).

The Father’s Motion – Occupation Rent

55Very little time was spent on this in submissions.

56Although I am persuaded that the Father would otherwise be entitled to some occupation rent on a go-forward basis, I cannot grant the relief sought ($700.00 monthly) because that is essentially equal to the carrying costs of the home that are being absorbed exclusively by the Mother ($675.00).

57It is “a wash”, or nearly so.

58Consequently, even if I overlooked the fact that occupation rent has not been pleaded by the Father in his Answer, the relief sought in his Motion must be denied.

III. CONCLUSION

59For all the above reasons, the Mother’s Motion for exclusive possession of the matrimonial home is granted. The Father’s Motion for a sale of the home and/or occupation rent is dismissed.

60If counsel cannot agree on costs and they are being sought by the Mother, who was successful on both Motions, I will accept written submissions. The Mother shall file within thirty days of the date of these Reasons, limited to two pages excluding attachments such as offers to settle and time dockets. The Father shall file within fifteen days thereafter, with the same restrictions. No reply is permitted by the Mother.

61This case has languished long enough.

62I order that the Application be set down for trial by the Trial Record being passed by the Mother within thirty days of December 15, 2016.

63Further, counsel shall forthwith contact the trial coordinator, Ms. Reilly in Owen Sound, to schedule a Trial Management Conference, which shall not be held until after the Trial Record has been filed.

64My estimate is that the trial on all the contentious property and financial-related issues can readily be completed in three days or less.

65The parties and counsel should proceed to trial as soon as possible, or contact the trial coordinator to schedule a mediation with me in an effort to resolve the case in its entirety. The latter could likely be held within the next three months or so.

66Neither party has any wealth or sizeable income. It is time to forget about interim relief and move towards a final resolution.

Conlan J.