Court File and Parties

COURT FILE NO.: FS-16-412020 DATE: 20170721 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Daniel Aaron Copeland, Applicant AND: Corinne Geller Copeland, Respondent

BEFORE: C. Horkins J.

COUNSEL: Laurie Pawlitza, for the Applicant Harold Niman and Kristen Normandin, for the Respondent

HEARD at Toronto: July 18, 2017

Endorsement

[1] The applicant (“father”) and the respondent (“mother”) were married on February 16, 2014. Their son was born on March 1, 2016. On May 14, 2016 the parties separated.

[2] Since separation, the mother and child have resided in the matrimonial home that the parties bought before marriage. It is jointly owned.

[3] On June 15, 2017 the parties brought motions that resulted in a consent order increasing the father’s parenting time with the child. It was agreed that the rest of the relief sought would be adjourned. The father’s motion for sale and partition of the matrimonial home and the mother’s motion for questioning were adjourned to July 18, 2017. These motions are the subject of this endorsement.

[4] The remaining relief in the June 15 motions was adjourned to October 16, 2017. The primary relief to be dealt with on October 16 is the father’s request for the s. 30 assessment of custody and access pursuant to the Children’s Law Reform Act, R.S.O. 1990, c. C.12.

[5] Finally, the mother seeks an order striking various paragraphs of the father’s June 5, 2017 affidavit.

Questioning

[6] At the outset of the hearing, the father’s counsel advised the court that the issue of questioning was resolved. On consent, each party may be questioned for no more than three hours. The questioning is limited to issues relating to the relief sought that has been adjourned to October 16. The questioning shall be completed by August 31, 2017.

[7] While the main issue on October 16 will be the request for the s. 30 assessment, I recognize that there may be some other minor issues that necessitate questioning.

[8] The mother has withdrawn her request to question Treina McGuirk (a non-party). Ms. McGuirk is a registered social worker and the owner of Family Fundamental. The father filed an affidavit from Ms. McGuirk to address the custody and access issues. This affidavit attaches a report from Ms. McGuirk. She observed the father during two of his access visits. Ms. McGuirk’s report summarizes her observations and offers a safety assessment relating to the child while in the father’s care.

Partition and Sale of Matrimonial Home

[9] Prior to marriage, the parties bought their home at 158 Chiltern Road in Toronto. It is jointly owned.

[10] The father moved out of the matrimonial home after separation and the mother and child have continued to reside in the home. The father’s interest in the matrimonial home is his most significant asset.

[11] Sections 2 and 3 of the Partition Act, R.S.O. 1990, c. P.4 provide as follows:

2. All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.

3.(1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.

[12] The law dealing with partition and sale is clear. A joint tenant has a prima facie right to sale prior to trial. This right exists unless the other joint tenant has made claims that would be prejudiced if the property is sold. The party that resists the application for sale, should have an order for interim exclusive possession, or be able to show that the claims she intends to put forward at trial will be prejudiced by an immediate sale. Batler v. Batler (1988), 18 R.F.L. (3d) 211 (Ont. H.C.).

[13] The issue of partition and sale was addressed further in Silva v. Silva (1990), 1 O.R. (3d) 436 (C.A.); and Martin v. Martin (1990), 31 R.F.L. (3d) 210 (Ont. Ct. Gen. Div.), aff'd at Martin v. Martin (1991), 34 R.F.L. (3d) 173 (Ont. Div. Ct.), rev'd in part at Martin v. Martin (1992), 38 R.F.L. (3d) 217 (Ont. C.A.). In summary, the Court of Appeal has stated that a joint owner has a prima facie right to partition and sale but this is not an absolute right. The order should not be made where it can be shown that it would prejudice the rights of either spouse. Numerous recent cases have followed this appellate authority: Goldman v Kudeyla 2011 ONSC 2718; Bonnick v Bonnick 2016 ONSC 657; Brienza v Brienza 2014 ONSC 6942; Allard v Sylvain-Allard 2015 ONSC 2052; Koehler v Koehler 2015 ONSC 5777.

[14] The mother does not say that the sale will prejudice her rights in this application. While she has a claim for spousal support, there is no interim spousal support order or a pending motion for support. This is not surprising given the very short term of the marriage and the mother’s employment. She is a lawyer and has earned more than the father. In 2015 she earned $167,013 and the father earned $108,125.

[15] The mother completed her maternity leave and recently took a bereavement leave following the death of her mother in early May. In her affidavit she states that she is not earning an income at this time and cannot “emotionally financially or physically move” at this time. The motion for sale of the matrimonial home was initially adjourned due to the unfortunate death.

[16] The mother states in her affidavit that she wants to “avoid any further changes” for the child and allow him to have the comforts and security of the matrimonial home. She states that all of the child’s “activities and friends” are in the neighbourhood. Such evidence must be placed in perspective. The child is only 16 months old. I do not accept that a move will impact a 16 month old child as the mother suggests.

[17] Counsel for the mother concedes that circumstances which typically mitigate against a sale, do not exist in this case. Since the child is 16 months old, he will have no memory of this home and has not developed an attachment to the neighbourhood that an older child may lose. The child is healthy and happy. He has no special needs. There is no suggestion that the sale of the home would affect the emotional well-being of the child or the mother. This is not a case where the trial is imminent and it is best to wait and deal with the sale of the home at trial. There has been no settlement conference and counsel agree a trial is not likely to take place until later in 2018.

[18] The mother’s counsel only offers one reason for resisting the sale. Counsel argues that the father has not established a “pressing need” for his equity in the matrimonial home. First this is not a reason to dismiss the father’s motion. The moving party does not have to show a pressing need for the money.

[19] In making this argument, the mother states that the father has the onus of establishing that she is unreasonably withholding her consent. She relies on Walters v Walters [1992] O.J. No. 1324. This is not a correct statement of the law. Stating that such an onus rests on the moving party is inconsistent with the law. Furthermore, at the outset of this decision the court acknowledged that “the general rule is that the court should compel the partition or sale of the jointly owned property if no sufficient reason appears why such an order should not be made. (Davis v. Davis [1954] O.R. 23 (C.A.)).” The court went on to state that “[s]ince there is a prima facie right to partition, ordinarily the onus is on the resisting party to establish why the order should not issue.”

[20] While I reject that the father has the onus of proving a pressing need for the money, the evidence is that he actually needs the equity from the matrimonial home. He cannot afford to maintain two residences and needs his equity to pay for a home for himself and the child, when the child is in his care. After separation, the parties used the money in their joint account to pay the joint expenses of the matrimonial home. By February 2017, there was no money left in the joint account. The father is relying on his line of credit and credit cards to make up the shortfall. He has over $30,000 in debt.

[21] The mother states that she has no ability to secure alternative accommodations because she is not working. This is not a reason to deny the sale, particularly on the facts of this case. The mother’s step father owns a number of buildings and condominiums in Toronto and she has this to fall back on. Like the father, she will have funds from the sale of the matrimonial home and can easily arrange new accommodation.

[22] The mother states that she has no financial support other than the monthly child benefit payment of $114.65 and a $500 payment from her late mother’s bank account. This ignores the monthly payment of child support. Further, the mother has not provided the disclosure that the father requested per my court order of June 15 at para. 6. She has not disclosed documents relating to her employment at the law firm and leave of absence that have been requested. She has not explained the source of funds from a $100,000 withdrawal from her bank account in March 2017. Further despite her claim that she cannot afford new accommodation, she made the following proposal to the father to try and avoid sale of the matrimonial home.

[23] Instead of selling the matrimonial home, the mother has offered to pay the father an advance of $500,000 from his equity. This assumes that the matrimonial home has a value of $1,600,000. If it is later determined that the value is less and the $500,000 payment exceeds the father’s 50% share, then the proposal requires the father to pay the mother the overpayment. The mother states that this is a solution that allows the father to receive some of his equity and allows the case to move forward “with minimum disruption” of the child. As I have already stated the alleged disruption to the 16 month old child is not a reason to dismiss the father’s motion for sale of the matrimonial home. Furthermore, in this proposal the father would remain on the mortgage and would not have access to all of his equity, as determined by a fair market sale. This would clearly limit the father’s ability to buy a new home, should he decide to do so.

[24] The father obtained a letter of opinion from Joyce Rosenblatt, a real estate agent at Forest Hill Real Estate. She has experience selling homes in the area of the matrimonial home. It is Ms. Rosenblatt’s opinion that as of June 30 2017, the home is worth between $1.8m and 1.95m. The mortgage on the property as of July 4 2017, was $489,682. Therefore the father estimates that his equity in the home is between $603,461.50 and $674,224. The mother has offered no evidence to dispute this valuation.

[25] In summary, the father has a prima facie right for the sale and partition of the matrimonial home. The mother has not met the burden of proving that her rights in this application will be prejudiced by a sale. Further this is not a case where the needs of the child are such that the sale should be denied.

[26] The motion is granted on the terms set out below that were requested by the father.

Exclusion of Evidence

[27] The mother argues that certain parts of the father’s affidavit should be struck because she says the evidence is inflammatory, unnecessary and irrelevant to the father’s motion.

[28] This evidence concerns internet communications that the father received from the mother’s brother. The respondent states that she had nothing to do with the communications and was unaware that her brother had sent them.

[29] The father explains in his affidavit that “Corinne and various members of her family” have threatened on a number of occasions that they will use their significant wealth against him in this litigation. Exhibit E to the father’s July 4 2017 affidavit is an example. This is a copy of a Facebook posting from the mother’s brother. In this posting he tells the father that he will convince his step father to “spend up to $1000 a month on legal fees just to make your lives miserable. You and your whole family”. It is not necessary to repeat all of the brother’s threats.

[30] I make no finding on this motion regarding the mother’s involvement in her brother’s communications with the father. There is conflicting evidence. The communications are still relevant. They provide context for the father’s concerns about the mounting cost of this litigation and his growing debts. It is within this context that he brings the motion for partition and sale of the matrimonial home. Finally, while I refuse to strike this evidence, it is important to add that the relief I have granted is allowed with or without the exclusion of this evidence.

Conclusion

[31] I make the following orders:

(i) On consent, each party may be questioned for no more than three hours. The questioning is limited to issues relating to the relief sought that has been adjourned to October 16, 2017. The questioning shall be completed by August 31, 2017.

(ii) The mother’s request to question Treina McGuirk, a non-party, is withdrawn.

(iii) The mother’s motion to exclude evidence is dismissed.

(iv) The father’s motion for partition and sale of the matrimonial home at 158 Chiltern Hill Road, Toronto, Ontario is allowed.

(v) The father shall provide the mother with a list of three real estate agents. The mother shall choose a real estate agent from this list. The parties will retain that real estate agent for the purpose of selling the matrimonial home.

(vi) The parties will list the matrimonial home for sale on or before September 6, 2017 and shall agree to a listing price within a range recommended by the real estate agent.

(vii) The parties shall cooperate in preparing and staging the matrimonial home for sale, as directed by the real estate agent that is chosen.

(viii) The parties shall accept the first reasonable offer to purchase the matrimonial home.

(ix) The net proceeds of the sale shall be divided equally between the parties and released to each party’s counsel’s trust account. The proceeds shall not be released without an agreement, arbitration award or court order.

(x) If the parties cannot agree on the costs of this motion, they shall exchange brief written costs submissions and file them with the court by August 18, 2017.

C. Horkins J. Date: July 21, 2017