COURT FILE NO.: FS-18-0015
DATE: 2018 12 31
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: D.R.W. v. C.W.
BEFORE: Doi J.
COUNSEL: Ursula Cebulak, for the Applicant
Poroshad Mahdi, for the Respondent
HEARD: December 20, 2018
ENDORSEMENT
Overview
[1] This is a motion by the Applicant father for partition and sale of the parties’ matrimonial home (“the matrimonial home”). The Respondent mother opposes the motion and seeks to remain in the matrimonial home with the parties’ special needs daughters. In the alternative, the mother seeks an early settlement conference in the hopes of concluding a separation agreement. In the further alternative, she seeks an early trial date for a comprehensive adjudication of all outstanding issues.
Adjournment Request
[2] As a preliminary matter, the mother asked to adjourn this motion due to a late service of the father’s motion materials. For the reasons that follow, the adjournment is denied.
[3] On November 14, 2018, the parties canvassed a return date for this motion. Based on their availability, the father initially set the motion down for December 14, 2018. He then served his materials on December 7, 2018, a day short of the mandatory service period under Rules 14(11)(a) and 3(2). On December 11, 2018, he consented to a late filing of the mother’s responding materials. The following day, the parties adjourned this motion on consent to December 20, 2018.
[4] In her affidavit sworn December 11, 2018, the mother expressed concern over her ability to prepare and file responding materials. Nevertheless, on December 13, 2018, she delivered her responding materials (i.e., after the parties agreed on December 12, 2018 to adjourn the motion to December 20, 2018 on consent). On December 20, 2018, her counsel advised the court during oral submissions that she did not wish to deliver further materials and was prepared to argue the motion. In the circumstances, I proceeded to hear the motion, which both parties argued fully.
Relevant Background
[5] I make the following findings for the purpose of deciding this motion, based on the evidence available from the record as filed.
[6] The parties began cohabiting in 2005, after the father sold his house in Brampton and moved into the mother’s house in Bolton. After he paid a portion of the proceeds from the sale of his house towards the mother’s mortgage, he was added as a joint owner on title to that property, now the matrimonial home.
[7] The parties married on August 8, 2008. During their marriage, the father paid for the mortgage on the matrimonial home and other home expenses.
[8] The parties separated on September 10, 2017. On separation, the father moved out of the matrimonial home while the mother continued to reside there with their 11 year old daughter, N.W., and her other children from another relationship. The record on this motion contained limited evidence that the father was charged for allegedly assaulting the mother, and entered into a peace bond that expired on December 22, 2017. However, the record lacked particulars regarding his alleged conduct, which was not strongly argued in submissions. As such, I am unprepared to give this factor any weight in deciding this motion.
[9] The parties’ daughter, N.W., resides with her mother in the matrimonial home and exercises access with her father every other weekend. N.W has dyslexia and a serious learning disability with a reportedly complicated profile. In 2017, while she was in Grade 5, her school board prepared a psychoeducational assessment report for her. The report detailed N.W.’s history of academic difficulties. It stated that her academic skills were below grade and age expectations. It recommended various targeted interventions and strategies to help her meet curriculum expectations.
[10] In September 2018, N.W. began Grade 6 in a special education placement at a new local elementary school. Along with eight (8) other students, N.W. attends a tailored three (3) year programme developed by the Hospital for Sick Children that is designed to bring her to grade level by the time she starts Grade 9. N.W. has adjusted well to her new school, has new friends, is on track academically, and reportedly is thriving.
[11] The father earns approximately $60,000.00 annually. He voluntarily pays the mother $1,500.00 monthly to cover child support for N.W. ($500.00 monthly) and his half of the mortgage on the matrimonial home ($1,000.00 monthly) where the mother resides with N.W. and her other children. Owing to these payments and his other expenses, the father cannot afford his own place. He is sleeping on a friend’s couch, for which he pays $600.00 monthly in rent. His current living situation is cramped and does not afford appropriate space for N.W. during her access visits with him, which the mother has acknowledged. Given the distance of his friend’s apartment to the matrimonial home, the father spends $200.00 more each month on gas to commute to work and to visit with his daughter. The father describes his living situation as both inadequate and unsustainable.
[12] Following their separation on September 10, 2017, the parties attended a case conference on June 12, 2018. At that time, the father first raised the matter of selling the matrimonial home, which he continues to seek. The mother agreed to sell the home for a brief period of time, but then changed her mind. She now refuses to list it for sale.
[13] Following the case conference, the parties exchanged financial disclosure, including the father’s pension valuation. Based on his Net Family Property Statement, the parties accept that the equalization payment owing by the father to the mother is the nominal amount of $496.59.
[14] The mother resides in the matrimonial home with N.W. and her two children from previous relationships, namely K.T. (age 21) and B.T. (age 26) who are both employed. The father claims that the mother’s third adult child, J.M. (age 29), also lives at the matrimonial home, although the mother states that J.M. resides elsewhere.
[15] B.T. has Autism Spectrum Disorder and special needs associated with her condition. She does not adjust well to change, and experiences anxiety when she meets new people or goes to new places. In her affidavit, which went unchallenged, the mother explained that, “[i]t would be extremely traumatic for B.T. to be uprooted from the matrimonial home where she has resided since she was 10 years old” (i.e., for approximately the past 16 years).
[16] B.T. works in the bakery department at the local Zehrs, and walks to work from the matrimonial home. She does not drive. If required to move from the matrimonial home, her mother fears that B.T. would probably lose her ability to work at Zehrs and likely suffer extreme anxiety. The mother also explains that “[i]t would be very hard for B.T. to adapt to a new workplace or even really get another job, given that she lacks social skills.” B.T. needs familiarity before being able to speak with a new person. It took her a long time to adopt a routine of walking from home to her workplace nearby.
Position of the Parties
[17] The father wants to sell the matrimonial home, the only major asset owned by the parties. He says that he requires the sale in order to access his share of the equity from the property and secure appropriate living accommodations for his daughter and himself. He argues that his current living arrangement is unacceptable to both of them. The proposed sale would be in B.T.’s best interests. It would allow him to address her living needs during her parental time with him.
[18] The father asserts that he lacks the financial means to continue his monthly mortgage payments to the mother, in addition to his support payments and his own living expenses. He is no longer open to negotiating a buyout of his interest in the matrimonial home as he believes that meaningful discussions with her have been exhausted. He has also come to believe that she is acting to prolong the status quo of her de facto exclusive possession of the matrimonial home that she shares with their daughter and her adult children. He argues that her other children are not dependents and, therefore, their interests should not be considered in determining whether to sell the matrimonial home.
[19] The father states that selling the matrimonial home would not necessarily compromise his daughter’s ability to continue attending her special education program at school. He feels that the mother may well apply the sale proceeds to relocate to a new home with the children in a location that would permit N.W. to continue attending her special education program. However, recognizing the disruption that N.W. inevitably would experience by selling the home and relocating to a new resident, he proposes to list the matrimonial home for sale no later than February 15, 2019 with a closing date of no earlier than July 1, 2019. This arrangement, he argues, would allow his daughter to complete the academic year at her current school with minimal disruption from the sale.
[20] The mother opposes selling the matrimonial home, arguing that it is in the best interests of N.W. and B.T. that they continue to live in the property. She claims that the economics of any sale would inevitably force her and her children to relocate to a more affordable neighbourhood beyond the vicinity of N.W.’s school and B.T.’s place of employment. In turn, she believes that such a move would leave N.W. unable to continue attending her special education program at school, and also prevent B.T. from continuing with her current employment. Consequently, she believes that selling the matrimonial home would entail unacceptable disruption that would not be in her daughters’ best interests.
[21] The mother wishes to negotiate a buyout of the matrimonial home from the father. But she has been unsuccessful in the buyout discussions to date as the parties disagree on the value of the matrimonial home. Moreover, it appears that the mother is unable to qualify for a mortgage. She claims that financial institutions are unprepared to extend her a mortgage without an order or separation agreement addressing equalization of net family property and child support issues. To overcome these obstacles and qualify for mortgage approval from a financial institution, she seeks to conclude a separation agreement or, alternatively, to obtain a final order following a trial on all outstanding issues so that she may obtain a mortgage and bid on the house.
[22] In any event, the mother opposes the father’s proposed schedule for selling the matrimonial home. She asserts that his proposed listing period is too far removed from his proposed earliest closing date and would hinder a provident sale. To maximize returns, should a sale be ordered, she argues that the property should be listed later in the spring. That would follow the more traditional seasonal cycle for optimally selling real estate.
Analysis
[23] In Copeland v. Copeland, 2017 ONSC 4475 at paras. 12 and 13, Horkins J. helpfully summarizes the well-established law governing the partition and sale of a matrimonial home:
[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), 1988 CanLII 4726 (ON SC), 18 R.F.L. (3d) 211 (Ont. H.C.).
[13] The issue of partition and sale was addressed further in Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (C.A.); and Martin v. Martin (1990), 1990 CanLII 12225 (ON SC), 31 R.F.L. (3d) 210 (Ont. Ct. Gen. Div.), aff'd at (1991), 1991 CanLII 12830 (ON SCDC), 34 R.F.L. (3d) 173 (Ont. Div. Ct.), rev'd in part at (1992), 1992 CanLII 7402 (ON CA), 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.
[24] In opposing this motion, the mother argues that the matrimonial home should not be sold. Instead, she seeks exclusive possession to permit N.W. and B.T. to continue living there with her. She claims that such an order would be in their best interests. The authority to grant exclusive possession of the matrimonial home is found in subsections 24(1) and (2) of the Family Law Act:
Order for possession of matrimonial home
- (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 from the application of this Part;
Temporary or interim order
(2) The court may, on motion, make a temporary or interim order under clause (1) (a), (b), (c), (d) or (e). R.S.O. 1990, c. F.3, s. 24 (2).
[25] Under subsection 24(3), the court shall consider the following in determining whether to make an order for exclusive possession:
(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;
(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.
[26] In determining the best interests of the children affected, subsection 24(4) states that 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.
[27] Taking into account all of these factors, I find that it is in N.W.’s best interests to not list the matrimonial home for sale until at least the end of the current academic year. This will permit N.W. to remain there with her mother and continue attending her special education placement at school with minimal disruption for at least the current academic year. In making this finding, I accept that N.W. likely would experience significant disruption to her daily living and academic routine if the home were listed for sale during her academic year. In addition to the inevitable disruption from the process of selling a home and moving to a new one, which the father concedes, there would be particularly significant uncertainly over where the mother and her children would relocate (i.e., given the unclear economics behind selling the matrimonial home, which remains a live controversy for the parties). This would be highly disruptive for N.W., particularly if she is forced to relocate to a significant distance from her current school that is problematic to manage. That could well compromise her ability to continue her special education program.
[28] Given the complex nature of N.W.’s learning profile and her special needs, I readily accept the importance of enabling her to continue attending her tailored special education program at this time. I also accept the importance of N.W. having minimal disruptions and a measure of stability over her current daily routine, at least to the end of the current academic year. Both are necessary for her to complete her program successfully this year. Accordingly, the matrimonial home should not be listed for sale before the current academic year ends. It is very encouraging to hear that N.W. has adjusted well to her program at school, that she is on track to reach her academic goals, and that she is thriving. It is in her best interests for her academic progress to continue without disruption.
[29] I accept that the father’s current living situation is far less than ideal, particularly as it relates to the parenting time that N.W. spends with him. However, having carefully considered N.W’s broader situation and circumstances, I find that it would be in her best interests to not proceed to have the matrimonial home listed for sale until the end of the current academic year. She should remain in the matrimonial home while continuing her current living and educational situation with minimal disruption until then.
[30] In view of the father’s financial disclosure and reported income, I observe (without making any finding) that his monthly contribution to the mortgage on the matrimonial home may well exceed his ability to pay as he claims. This appears to be an issue requiring prompt attention and resolution, which the parties could address productively with the assistance of a judge at a settlement conference. To this end, I direct the parties to schedule a settlement conference at the earliest opportunity, as set out below in my order.
[31] I also wish to address the situation as it relates to B.T., an adult child from her mother’s previous marriage. B.T. has Autism Spectrum Disorder and continues to live under the care of the mother, who manages her special needs. It is noteworthy that B.T. has lived in the matrimonial home for about 16 years (i.e., since she was 10 years old), which overlaps with the period in which the parties cohabited and were married. As B.T. is now working, and the mother has not claimed child support for her, it is not necessary to consider whether the father has any support obligations towards her. But that does not mean that her best interests cannot be considered in the context of my exercise of discretion in the unique facts of this case.
[32] I find that both parties bear a measure of responsibility for her current care and living situation, at least for now; Senos v. Karcz, 2014 ONCA 459 at para 43. Although the father denies responsibility for B.T., I accept that he likely had a parental role while they both lived in the matrimonial home during the marriage. I appreciate that any legal obligation that he may hold for B.T.’s care and living situation may not necessarily continue for an indeterminate period. But given B.T.s circumstances and history with the parties, I have no hesitation in determining that the father has some responsibility at this time. Accordingly, I am prepared to consider B.T.’s best interests in determining this motion.
[33] Recognizing her medical condition and special needs, I find that B.T.’s best interests are served by not listing the matrimonial home for sale for at least the next six months. This interim arrangement will minimize any immediate disruption to B.T.’s current daily routine, including her employment, which she would experience if the home were listed given the inherently disruptive nature of selling and moving, particularly in the current circumstances as mentioned above. More importantly, it will give B.T. an opportunity to identify future changes resulting from the family dispute that may impact her living situation, and provide her with some time to acclimate to them as best she can. Given B.T.’s challenges in coping with change, I strongly encourage all who give her care and support to help her address and manage any future changes that may impact her.
[34] Recognizing N.W.’s special needs and circumstances, I would have been prepared to deny the father’s motion for partition and sale based solely on her situation alone. That said, my decision to deny the motion is further supported by factoring B.T.’s special needs and circumstances, which are very much relevant and important based on her situation and history with the parties.
Orders
[35] Based on the foregoing, I make the following orders:
This motion for partition and sale is dismissed, without prejudice to the father’s right to bring a further motion for that relief sometime after July 1, 2019, should the disposition of the matrimonial home not be resolved before then.
The parties shall contact the Brampton Trial Coordinator to set a settlement conference date for the earliest available date.
Among other issues, the settlement conference should address the issue of the father’s monthly payment towards the mortgage on the matrimonial home.
Should the parties be unable to reach a separation agreement at the upcoming settlement conference, the settlement conference judge should fix a timetable so that this case may proceed to trial at the earliest available opportunity.
I strongly urge the parties to agree on costs for this motion. If they are unable to do so, the mother may deliver cost submissions through my judicial assistant of not more than 3 pages (12 point font, double spaced, one inch margins), exclusive of her cost outline and any offer to settle, within 10 days of the release of this endorsement. The father then will have 10 days thereafter to deliver his cost submissions on the same terms. There will be no reply cost submissions without leave. If I do not receive the parties’ costs
submissions within 20 days, I will assume that they have resolved the issue on their own.
Doi J.
DATE: December 31, 2018
COURT FILE NO.: FS-18-0015
DATE: 2018 12 31
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DANIEL RICHARD WARD v. CINDY WARD
COUNSEL: Ursula Cebulak, for the Applicant
Poroshad Mahdi, for the Respondent
ENDORSEMENT
Doi J.
DATE: December 31, 2018