Court File and Parties
COURT FILE NO.: F1357/15 DATE: June 27, 2017 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT
RE: John Turnbull McInnis, applicant AND: Rose Marie McInnis, respondent
BEFORE: MITROW J.
COUNSEL: Mark Coulston for the applicant Michael H. Murray for the respondent
HEARD: March 29, 2017
Amended Endorsement
[1] The applicant brings a motion for summary judgment for the sale of the matrimonial home. This was the main issue that was argued.
[2] The respondent opposed that relief and brought her own motion for some procedural orders, and an order for interim exclusive possession of the matrimonial home and contents.
[3] The applicant’s motion also seeks various ancillary orders to facilitate the sale of the matrimonial home if that order is made.
[4] For reasons that follow, the [applicant’s] motion for sale of the matrimonial home is granted. The reasons also deal with the other relief sought in both motions.
Brief Background
[5] The parties were married in 1979 and separated in July 2014. There are no children of the marriage.
[6] Both parties were employed during the marriage. The applicant worked at a bank and the respondent was employed as a teacher and vice principal by a local board of education.
[7] The parties are almost the same age – both in their early sixties. Both parties have been retired for a number of years; the applicant does not challenge the respondent’s evidence that she retired in 2003 and that the applicant retired in or about 2004.
[8] The parties agree that the applicant managed the finances during the marriage.
[9] The matrimonial home is jointly owned and mortgage free. The respondent included in her material a report from a real estate brokerage firm, dated the month following separation, that the matrimonial home would have a selling price in the range of $388,500 to $392,500. While the applicant is of the view that the matrimonial home, now, is worth more, the precise current value of the matrimonial home does not affect the disposition of the applicant’s motion for summary judgment.
[10] The respondent has continued to reside in the matrimonial home since the date of separation. The parties agree that attempts to resolve the property issues arising from their separation have been unsuccessful.
[11] The applicant deposes that his income consists of “net RRIF income” of approximately $628.65 monthly, plus “net” monthly CPP payments of $387.69. The applicant further deposes that he periodically redeems portions of his RRSP to assist with daily expenses.
[12] In his financial statement, the applicant discloses his RRIF and RRSP together having a valuation-date value of approximately $325,000. Except for a small credit-card balance, the only debt disclosed by the applicant at the valuation date is the contingent tax liability on his RRIF and RRSP.
[13] The respondent deposes that her income consists of $550.19 monthly from CPP and $433 monthly from her RRIF. Similar to the applicant, she withdraws money from her RRSP; in 2015, she deposes that she withdrew $10,000 from her RRSP.
[14] The respondent’s financial statement discloses a valuation-date value of approximately $237,000 for her RRIF and RRSP. She discloses no valuation-date debt except for notional income tax on her RRSP and RRIF.
[15] The main thrust of the applicant’s motion is that he needs his share of the equity from the matrimonial home to meet his expenses. The applicant submits that it is obvious that the matrimonial home needs to be sold and that there is no genuine issue requiring a trial in relation to his motion for summary judgment.
The Test on a Motion for Summary Judgment
[16] Rule 16 of the Family Law Rules, O. Reg. 114/99 deals with motions for summary judgment. The following portions of r. 16 are relevant in the present case:
Evidence Required
(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.
Evidence of Responding Party
(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.
No Genuine Issue for Trial
(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
Powers
(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
[17] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada explained when there will be no genuine issue requiring a trial, as follows, at para. 49:
[49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
Discussion
[18] The parties agree that the court’s jurisdiction to order the sale of the jointly-owned matrimonial home is found in the Partition Act, R.S.O. 1990, c. P.4, section 2.
[19] The respondent advances a number of arguments as to why the sale of the matrimonial home should not be ordered now, and instead should be left for trial.
[20] The respondent relies on her claim for exclusive possession of the matrimonial home; she submits that an order for a sale, now, would prejudice that claim. The respondent relies on Martin v. Martin, 1992 CarswellOnt 226 (Ont. C.A.), where the Court of Appeal for Ontario stated at para. 26:
26 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), 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. [my emphasis]
[21] There is no existing order for interim exclusive possession of the matrimonial home.
[22] The respondent deposes that she has health issues that limit her ability to find suitable alternate accommodation; she deposes that she suffers from “Multiple Chemical Sensitivity” (“MCS”), that she describes as a condition that causes her to react to different chemicals and “off gassing” from regular household items, and building materials that include “paint, plastics, carpeting, laminate flooring and chipboard.” In her initial affidavit, the respondent deposed that she and the applicant “built the matrimonial home using quality materials which accommodate my current health issues.” The respondent adds that she cannot afford to purchase a new home with similar or equivalent materials, and that she cannot move into a residence with “normal materials” without it having a negative impact on her health.
[23] The respondent filed no medical evidence with her initial affidavit to support any of her assertions relating to her alleged MCS. When challenged on this lack of evidence in an affidavit from the applicant, the respondent filed a further affidavit, alleging that she had suffered a severe reaction and had to call 911 because the municipality changed the water meter to a “smart” meter.
[24] The respondent produced a medical report from Dr. Wong, at the London Cardiac Institute, addressed to the respondent’s family physician. This report was in relation to the respondent being examined in January 2017 and noted that the respondent had been “battling” the installation of a smart meter for water use which has caused “a lot of symptoms due to her environmental sensitivities.” The medical report indicates that the respondent was seen because of her worsening dyspnea, and concluded that the respondent’s symptoms were related to the smart meter and that the solution is to reinstall the previous meter.
[25] While the medical report alludes to the respondent’s “environmental sensitivities,” there is no formal diagnosis of MCS; the discussion in the medical report relates to the water meter.
[26] The respondent deposed further that when Union Gas painted the gas meter that she became “extremely sick with upper respiratory problems,” and that the meter had to be replaced with an unpainted meter. No time frame is given as to this occurrence, nor is there any medical evidence corroborating same.
[27] The respondent explained in her second affidavit that she was diagnosed with MCS in 2003, after receiving an electric shock from a lamp while on vacation. The evidence from the applicant, corroborated by the previously-mentioned report from the real estate brokerage firm, is that the matrimonial home was built around 1990. Hence, there is no evidence that materials used in the construction of the matrimonial home were designed to accommodate an alleged diagnosis of MCS, as on the respondent’s own evidence, it was a number of years later that she allegedly was diagnosed with MCS.
[28] No expert evidence, or any other independent admissible evidence, was tendered by the respondent to corroborate her allegations that a residence with “normal materials” would aggravate her alleged MCS. Further, there is no medical evidence corroborating that the respondent has a diagnosis of MCS.
[29] For his part, the applicant deposes that during the marriage he was aware of the respondent’s health issues and any diagnoses that she had; he deposes that he was never aware of any formal MCS diagnosis.
[30] The respondent raises the issue of the applicant’s multiple sclerosis (“MS”) diagnosis. She deposes that the applicant’s diagnosis included cognitive decline. The respondent’s evidence is that the applicant told her in 2002 that they were “financially secure” and had over $1.5 million in savings and investments. The respondent emphasises that the applicant was in charge of their finances and she questions why, at the time of separation, their combined net worth was substantially less than $1.5 million. The respondent’s theory appears to include the suggestion that money may have been squandered by the applicant, perhaps a result of his alleged cognitive decline, or that the applicant has failed to disclose assets.
[31] I find, based on the evidentiary record, that there is no substance to these allegations.
[32] The applicant disputes the allegation that his MS diagnosis includes cognitive decline. He includes a clinic note from his specialist in relation to a visit on November 30, 2015. This note includes findings that the applicant’s speech is articulate, that there is no evidence of any cognitive disturbances and that any cognitive testing was deferred as there was no clear indication for this.
[33] The applicant denies any statements attributed to him that he told the respondent that they had a net worth of $1.5 million. The applicant’s evidence is that the combined market value of their investments never exceeded $930,640, being the value in early June 2007, and the applicant deposes, that similar to other investors, the parties suffered a loss in their investments following the “market crash” in 2008.
[34] The respondent had alleged in her initial affidavit that she had “discovered” that the applicant had been making multiple cash withdrawals, from different bank branches, every few days. The respondent deposed that the monthly cash withdrawals ranged from “around $500 - $1000 at thirty-six different branches.” It was the respondent’s evidence that she had discovered the foregoing after obtaining a copy of the account activity for their joint TD chequing account.
[35] After the applicant deposed that none of those bank records were attached to the respondent’s affidavit, the respondent appended some bank records to her subsequent affidavit. These bank records covered only the period March 31, 2014 to May 22, 2014. The records show occasional cash withdrawals, usually ranging from $40 to $80 with one withdrawal being $160.
[36] The applicant denied the respondent’s allegations as to the total locations, frequency, and total amount, of cash withdrawals. The applicant did agree that he made cash withdrawals from time-to-time as he was responsible for all the shopping and home maintenance.
[37] The small sample of bank records attached to the respondent’s affidavit is not a corroboration of her allegations as to frequency, amount and location of each withdrawal. The respondent fails to explain why she disclosed such limited records given her somewhat sweeping allegations. Given the applicant’s evidence as to his responsibility for shopping and home maintenance, there is nothing that appears unreasonable from the records that the respondent did elect to provide.
[38] The respondent alleges that the applicant became emotionally and physically abusive and that the police were called twice; the applicant agrees that the police attended, but disputes the allegations of abusive conduct. What is not in dispute is that no charges were laid.
[39] The present case is not complicated. It is a relatively straight-forward matter of calculating each party’s net family property. The respondent deposes that “we are still in the process of obtaining all the disclosure to complete a more substantial property calculation.” The respondent does not expand on what information has yet to be produced, and by whom. The respondent does depose that a “preliminary calculation” shows that the applicant will owe an equalization payment ranging from $40,000 to $60,000, plus pre-judgment interest.
[40] The evidence suggests that each party’s interest in the matrimonial home will be at least in the range of close to $200,000.
[41] Similar to the decision of J. Mackinnon J. in Chaudry v. Chaudry, 2012 ONSC 2149 (Ont. S.C.J.) at paras 24-25, relied on by the applicant, the respondent has not established on a prima facie basis that she will be able to invoke the provisions of s. 9(1)(d) of the Family Law Act, R.S.O. 1990, c. F.3 to require the applicant to transfer to her his share of the matrimonial home equity to satisfy an equalization payment. As explained by Mackinnon J., the entitlement to an equalization payment at trial may be a substantial right that requires determination at trial where the evidence demonstrates that the party seeking the sale of the jointly-owned property will owe an equalization payment equal to or greater than that party’s interest in the equity. No such evidence was adduced in the case at bar.
[42] I adopt the following statement by J. Mackinnon J. in Chaudry, supra, at para. 21 in relation to judicial orders for sale prior to trial:
21 In Goldman v. Kudeyla, 2011 ONSC 2718, 5 R.F.L. (7th) 149, McGee J. provides a helpful summary of the law with respect to judicial order for sale prior to trial. She states at paras. 17, 18 and 19:
17 A property owner, whether the holder of an exclusive interest or a joint interest has a prima facie right to sale. When the property consists of an interest in a matrimonial home, that prima facie right is subject to any competing interests under the Family Law Act that would otherwise be defeated.
18 To make a pre-trial order for the sale of a matrimonial home the court must first determine whether the resisting party has established a prima facie case that he or she is entitled to a competing interest under the Family Law Act. If not, then the right to sale prevails. If so, then the motion for sale is denied unless the selling party can demonstrate that the sale would not prejudice the rights of the resisting party.
19 There have been a number of cases in which the Court has denied an interim motion for sale prior to trial such as Arlow v. Arlow (1990), 33 R.F.L. (3rd) 44 (OCA,) Walters v. Walters, [1992] O.J. No. 1564, 1992 CarswellOnt 811 and more recently, Kereluk v. Kereluk, Ontario S.C.J. In each case there were compelling circumstances in which one or both tests favoured the resisting party, such as the availability of trial within a short period, prejudice on the equalization payment, or the need to preserve the residence for a vulnerable spouse or child who might well retain the home in the cause.
[43] The applicant, as joint owner, has a prima facie right to a sale of the matrimonial home. The evidentiary record discloses no genuine issue that requires a trial in relation to the applicant’s motion for sale of the matrimonial home. The evidence does not establish that the respondent has a prima facie case entitling her to a competing interest under the Family Law Act. There is no basis at trial for an order of exclusive possession, especially considering the length of time that the respondent has already resided in the matrimonial home subsequent to separation. Further, this is not a case where the respondent can obtain an order under s. 9(1)(d) requiring a transfer of the applicant’s interest in the matrimonial home to satisfy an equalization payment.
[44] In relation to the applicant’s motion (as amended), the order sought includes various relief that is ancillary to the sale of the matrimonial home and that is reflected in the order below. Also, the applicant sought an order granting him possession of a list of household contents. It is not entirely clear whether the applicant was seeking a final or interim order. In any event, the evidence as to household contents was very sparse and it is not possible to make an order, even an interim order. No values were assigned to any of the contents. The respondent disagrees with this list. The order below preserves the right of either party, if necessary, to bring a further motion for interim exclusive possession of the matrimonial home contents. The parties are encouraged to agree on the division of household contents, failing which they may risk an order at trial that all household contents should be sold at auction. The court, generally, does not engage in the ad hoc task of dividing up household contents.
[45] In relation to the matrimonial home sale proceeds, the applicant does not oppose an amount equal to the range of potential equalization payment being held back. The applicant did submit that a similar amount should be held back from the respondent’s share. There is an issue as to the respondent’s claim for a little over $38,600 for an exclusion based on an inheritance from her mother’s estate. Also, the applicant seeks an adjustment equal to 50% of amounts totalling a little over $38,400 withdrawn by the respondent from their joint accounts. Finally, although not quantified, the applicant is claiming occupation rent which, on the facts, is a viable claim.
[46] Neither party filed a net family property statement. Doing the best I can on the evidence, the order below requires that $60,000 be withheld from each party’s share of the matrimonial home sale proceeds, but subject to a further motion.
[47] The respondent’s request for interim exclusive possession of the matrimonial home is dismissed. The respondent has occupied the matrimonial home since separation, without interference from the applicant. In the circumstances, an interim exclusive possession order, at this late date, is not necessary. The respondent’s request to amend her answer was granted on March 22, 2017. The respondent’s request for oral questioning was not addressed and I do not deal with it.
Order
[48] For the foregoing reasons:
(1) A final order is granted that the matrimonial home shall be listed forthwith and sold.
(2) The parties shall choose either Tena McKay or Steve Riddell of Sutton Preferred Realty as the listing agent and, if the parties fail to agree within five days, then both persons shall be the listing agents. The parties are at liberty, on consent, to choose someone else to be the listing agent.
(3) The listing agent shall have access to the matrimonial home on 24 hours’ notice to the respondent (or such other length of notice as agreed to by the respondent and the listing agent) for the purpose of inspecting the matrimonial home to determine the listing price, to conduct an open house, or to allow prospective purchasers to view the matrimonial home.
(4) The respondent shall maintain the matrimonial home in a reasonable state necessary for the sale of the matrimonial home as may be requested by the listing agent.
(5) The parties promptly shall sign the listing agreement and any other documents reasonably required by the listing agent or the lawyer acting on the sale.
(6) The applicant’s request for exclusion possession of the contents of the matrimonial home, whether final or interim, is dismissed.
(7) The respondent’s request for interim exclusive possession of the matrimonial home and contents is dismissed.
(8) Paragraphs 6 and 7 are without prejudice to the right of either party to bring a further motion on better evidence for interim exclusive possession of the contents of the matrimonial home.
(9) The net proceeds from the sale of the matrimonial home shall be paid out in equal shares, to each party, subject to $60,000 being withheld from each party’s share.
(10) The amount withheld from each party’s share shall be held in trust pending further order of this court, or pending further written direction signed by both parties. The money shall be held in trust by the lawyer who acts on the sale of the matrimonial home, but the parties may jointly direct another lawyer, or lawyers, to hold the money in trust.
(11) Paragraph 9 of this order is without prejudice to the right of either party to bring a motion prior to trial in relation to the distribution of the matrimonial home sale proceeds based on new evidence subsequent to the date of this order.
(12) All other claims in the applicant’s motion, not dealt with in this order, are dismissed.
(13) If the parties cannot agree on costs, then each party is at liberty to make written costs submissions by July 31, 2017, to be forwarded to the trial coordinator, not to exceed two typed pages, double-spaced, plus copies of any offers, time dockets, bills of costs or authorities.
Justice Victor Mitrow
Date: June 27, 2017