Baker v. Baker, 2016 ONSC 845

CITATION: Baker v. Baker, 2016 ONSC 845

COURT FILE NO.: 6242/15

DATE: 2016-02-03

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Roger Baker, Applicant

AND:

Lillian Baker, Respondent

BEFORE: The Honourable Mr. Justice D.J. Gordon

COUNSEL: Robert MacLeod, Counsel for the Applicant Debora A. Lyons-Batstone, Counsel for the Respondent

HEARD: January 28, 2016

ENDORSEMENT

[1] Two motions require determination of several issues. The applicant seeks an order for the sale of the former matrimonial home. The respondent requests a transfer of the case to the County of Simcoe, an accounting for certain funds, disclosure of bank records and leave for questioning.

Background

[2] The parties married on October 10, 1987 and separated on July 29, 2013. Both were previously divorced. Robert Baker is 78 years of age. He resides at his son’s residence in Port Dover. Lillian Baker is 75 years of age. She resides in the former matrimonial home in Wasaga Beach.

[3] Ms. Baker was injured in a motor vehicle accident in 2012. It appears accident benefit coverage from her insurer paid for mobility modifications to the home as well as attendant caregiver payments to Mr. Baker during her convalescence. No mention was made as to any tort claim. Ms. Baker’s family physician, in correspondence dated April 13, 2015, reported chronic pain affecting mobility, including driving long distances. The medical information has not been updated as to Ms. Baker’s present status.

[4] The parties resided in the County of Simcoe for some years. The matrimonial home was acquired in 2006. It is a modular home on a leased lot. Title was acquired by a Bill of Sale, initially in the name of Ms. Baker. Tenancy in common was created by a subsequent Bill of Sale in 2010.

[5] After 26 years of marriage, the parties separated on July 29, 2013. Ms. Baker claims she was assaulted by Mr. Baker. Mr. Baker says she made false allegations. Mr. Baker was arrested by the police and charged with three counts of assault. Two charges were subsequently withdrawn. During the trial, on June 4, 2013, the remaining count was stayed by Crown counsel.

[6] Following his arrest, Mr. Baker was released from custody on certain terms. His recognizance required him to reside with his son, who was his surety, and he was prohibited from entering the matrimonial home. Presumably, those restrictions no longer apply.

Litigation

[7] Mr. Baker commenced this case by an application, issued in Simcoe on February 17, 2015. He seeks a divorce, equalization of net family properties, sale of family property and, if necessary, possession of the matrimonial home for the sale to proceed.

[8] Ms. Baker’s answer is dated April 1, 2015. She agrees with Mr. Baker’s claim for divorce but disagrees with his request for equalization of net family properties. However, she does not make any claims against Mr. Baker.

[9] A case conference was held on June 5, 2015. The parties were directed to provide disclosure pursuant to the Family Law Rules and the terms of a consent signed that day. Both parties complain as to deficiencies in disclosure by the other.

Finances

[10] As just mentioned, the parties still complain about disclosure almost a year since this case commenced. Regardless, it is clear the parties are of modest means. Both receive Canada Pension Plan and Old Age Security payments. Ms. Baker has a small employment pension. Mr. Baker has generated modest business income.

[11] Other than the matrimonial home, the parties have few assets, at least as disclosed in their financial statements and, perhaps, subject to further disclosure. Although no appraisal has been obtained, despite discussion at the case conference, the matrimonial home may have a value of $220,000.

Analysis

(i) Transfer of Proceedings

[12] Mr. Baker resides in Norfolk County. He started this proceeding in Simcoe, as he was entitled to do pursuant to Rule 5(1).

[13] Ms. Baker resides in Wasaga Beach. She asks that the case be transferred to Simcoe County, at the satellite court in Collingwood.

[14] Rule 5(8) allows the court to transfer the case or step in the case if it is substantially more convenient to do so.

[15] The request to transfer is premature for two reasons. First, the evidence supporting Ms. Baker’s motion is stale. Medical evidence as to current physical condition would be required. More importantly, this is not a difficult case. The dispute essentially involves assets and documents.

[16] As hereafter discussed, the remaining steps in the case prior to trial can be scheduled to accommodate the needs of both parties. In result, Ms. Baker’s motion to transfer is adjourned without date, returnable on seven days’ notice, but not before the completion of the trial management conference.

(ii) Disclosure, Accounting and Questioning

[17] These matters, in my view, are connected. Despite the passage of time, disclosure remains outstanding. Disclosure ought to have been completed shortly after the case conference on June 5, 2015 and in accordance with the consent signed that day. Although there has been some exchange of correspondence between counsel, I am concerned as to the extent of their actual discussion and review.

[18] Ms. Baker complains about the lack of documentation from Mr. Baker, particularly regarding bank accounts and the transfer of funds prior to separation. She refers to a Swiss bank account record found in the matrimonial home. Ms. Baker also refers to multiple addresses used by Mr. Baker.

[19] Mr. Baker says he was forced out of the home on separation and all of his documents remained in the possession of Ms. Baker. He denies owning a Swiss bank account. Mr. Baker also complains about Ms. Baker’s failure to provide the direction to allow him to obtain banking particulars as agreed to in the consent signed at the case conference.

[20] These matters should have been addressed long before now. Delay causes further expense. In result, a temporary order is granted on the following terms:

i) the parties shall comply with the terms of their consent, dated June 5, 2015 and, in addition, serve a sworn affidavit of documents on or before February 26, 2016;

ii) leave for questioning is granted, such to take place in accordance with Rule 20(11), or as otherwise agreed, on or before March 31, 2016; and

iii) a settlement conference shall be immediately scheduled by request of counsel to the trial co-ordinator, to take place in Simcoe in April 2016, with leave granted to Ms. Baker and her counsel to participate by conference call.

Sale of Matrimonial Home

[21] The matrimonial home consists of a modular residence on a leased lot. Title would be described in a Bill of Sale for the residence and, perhaps, the land lease or assignment of lease.

[22] Neither party presented title documents for this motion. In the consent dated June 5, 2015, Ms. Baker was to obtain the title documents from the real estate lawyer’s file.

[23] In her affidavit, sworn January 7, 2016, Ms. Baker asserts “the modular home is registered in my name alone”. However, attached to Mr. Baker’s affidavit, sworn January 22, 2016, is correspondence from the real estate lawyer to Mr. Baker’s counsel dated December 2, 2015. That lawyer reported Ms. Baker to have become the owner of the modular home on October 6, 2006 and that “she signed a Bill of Sale to herself and Roger Baker as tenants in common on April 28, 2010”.

[24] Ms. Baker’s counsel now argues that Bill of Sale is not registered yet, as previously mentioned, did not tender the title documents in evidence.

[25] Registration is simply notice to others and does not define ownership as between the parties. The only evidence before me on this motion is that Ms. Baker signed a Bill of Sale in 2010. That evidence is not denied. In result, the only available finding is that the parties own the matrimonial home as tenants in common.

[26] The ownership is of a leasehold interest in the property as well as the modular home. Section 2 of the Partition Act applies in that “all … tenants in common … may be compelled to make or suffer partition or sale of the land …”. Partition or sale has long been considered a prima facie right; however, it is a discretionary remedy. See: Davis v. Davis, 1953 CanLII 148 (ON CA), [1954] O.R. 23 (Ont. C.A.)

[27] Partition of sale at an early stage will be denied if a party will likely be jeopardized by such an order, with the application being deferred until the matter is decided under the Family Law Act. See: Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 30 R.F.L. (3d) 117 (Ont. C.A.). The proper standard for the exercise of discretion to refuse partition or sale requires evidence of malicious, vexatious or oppressive conduct. See: Latcham v. Latcham (2002), 2002 CanLII 44960 (ON CA), 27 R.F.L. (5th) 358 (Ont. C.A.).

[28] The starting point is the pleadings. In his application, Mr. Baker claims:

00 a divorce

20 equalization of net family properties

21 exclusive possession of matrimonial home

24 sale of family property

30 costs

Exclusive possession is limited to the sale of the property should Ms. Baker no co-operate with same.

[29] In her answer, Ms. Baker indicates she does not agree with claims 20, 21 and 30. She does not oppose the sale of family property yet attempts to do so in response to this motion. Further, Ms. Baker does not present any claims against Mr. Baker, such as an unequal division of property or exclusive possession. Pleadings govern the process. In the absence of an amended answer, Ms. Baker cannot oppose the motion for sale of the matrimonial home.

[30] According to the financial statements of the parties, each has income of approximately $20,000. Other than the matrimonial home, the only asset of value is a joint account at Meridian Credit Union of $13,323. The parties had a frugal lifestyle. They cannot afford this litigation.

[31] In her affidavit, Ms. Baker makes serious allegations as to non-disclosure and a belief Mr. Baker “was siphoning money in anticipation of ending our marriage”. Given the absence of evidence, the obvious concern is that her complaints are mere bald allegations. No documents were tendered in evidence, which is of concern when all of the parties’ documents remained in the matrimonial home when Mr. Baker was arrested. Further, with 26 years of cohabitation, it is expected a spouse can present more detailed evidence as to the other’s finances.

[32] In result, at this stage I cannot conclude equalization calculations will be difficult. Any concern for jeopardy in this regard, however, can be protected by requiring the sale proceeds to be held in trust pending further order.

[33] Ms. Baker’s position, in opposing equalization of net family property and sale of the matrimonial home, is that Mr. Baker’s equity can remain in the home while she continues to reside in it. This position is untenable. She has not sought exclusive possession nor can there be a reason to justify delay. Mr. Baker is entitled to an equalization of net family properties pursuant to section 5(1), Family Law Act. The only issues are calculation and payment. On the evidence tendered, it is obvious the matrimonial home must be sold to complete the equalization process. Sale is inevitable if Ms. Baker is unable to finance the purchase of Mr. Baker’s interest.

[34] In this regard, the evidence regarding Ms. Baker’s health is not persuasive. As previously mentioned, the doctor’s report is outdated. There is no evidence as to her present condition. No detail was provided as to modifications to the home leading to the conclusion such were only minimal mobility assistance installations. Such are common in homes or apartments for seniors.

[35] I am not persuaded Ms. Baker will suffer any jeopardy. There is no evidence, only allegations, as to malicious, vexatious or oppressive conduct. In result, Mr. Baker’s prima facie right to partition or sale must be allowed to stand. His motion for sale of the matrimonial home is granted on the following terms:

(a) the parties, jointly or separately, shall obtain a valuation report from a licensed real estate agent and, if separately, disclose such report to the other on or before March 31, 2016;

(b) the property (leasehold interest and home) shall be listed for sale with a real estate agent mutually agreed upon on or before April 29, 2016;

(c) the parties shall co-operate with the listing agent and in all matters pertaining to the sale;

(d) Ms. Baker shall vacate the premises five days prior to closing;

(e) the net sale proceeds shall be held in trust, in an interest bearing account, by the real estate solicitor or paid into court to the credit of this case pending further order or consent; and

(f) upon request, further directions will be provided regarding the sale process.

Summary

[36] A temporary order is granted on the terms herein. If the parties cannot agree on the issue of costs, counsel are directed to exchange written submissions and deliver same to my chambers in Kitchener within 30 days.

D.J. Gordon J.

Date: February 3, 2016