COURT FILE NO.: FS-17-313-00
DATE: 2019 01 21
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Nicholas Steele
Applicant
Johanne Doucet
Respondent
BEFORE: Bloom, J.
COUNSEL: Michael Kril-Mascarin, Counsel for the Applicant
Ronald Sleightholm, Counsel for the Respondent
HEARD: August 22 and October 22, 2018; and January 21, 2019
E N D O R S E M E N T
I. INTRODUCTION
[1] The Applicant moves under the Partition Act, R.S.O. 1990, c. P.4 for an order that the property known as 2053 Redan Drive, Mississauga, Ontario be sold and the proceeds of sale divided equally between the parties; and for order for interim spousal support, secured by an insurance policy designating him irrevocably as beneficiary.
[2] The trial of the proceeding is scheduled for May of 2019.
II. FACTS
[3] The parties met in 2005 and began cohabitation in October of 2007. They were never married and had no children together. The Respondent has a child from a previous marriage, a daughter, born in August of 2001.
[4] The parties separated in July of 2017.
[5] The parties were earning similar levels of income for a period of time. In September of 2012, the Applicant left the workforce and earned a Bachelor’s and then a Master’s degree in Disaster and Emergency Management. The Respondent encouraged the Applicant’s decision to leave the workforce and undertake the further education. The Applicant obtained his Bachelor’s degree in June of 2015, and was studying full-time for the Master’s degree as of the date of separation; he obtained that degree in December of 2017. The Respondent financially supported the Applicant during his schooling. The Applicant did, however, devote more time to maintaining, renovating and improving their home on Redan Drive in Mississauga.
[6] Since receiving his Master’s degree, the Applicant has applied for employment in the field in which he graduated; has received a small income as a teaching assistant; and has been developing a business which has earned no income.
[7] According to the Respondent’s last issued pay statement for 2017, her taxable income was $104,011.28.
[8] When the parties began cohabiting, they did so at the Redan Drive property owned by the Respondent.
[9] The parties opened a joint bank account into which both deposited funds; from this account expenses of the Redan property were paid.
[10] Title to the property was transferred into the names of the parties as joint tenants on June 11, 2009; both parties became mortgagors on the mortgage. The Applicant continued to participate in funding expenses on the property through the joint account; he also invested funds in renovation of the property. Further, he also personally completed various renovations to the property, including doing painting and installing trim.
[11] Both parties did significant work on the renovations, and were assisted by the Respondent’s father.
[12] The Respondent is continuing to make mortgage and other payments for the Redan property.
III. GOVERNING PRINCIPLES
A. PARTITION AND SALE
[13] The applicable portions of the Partition Act, R.S.O. 1990 c. P.4 are:
Definitions
1 In this Act,
“court” means the Superior Court of Justice;
“land” includes lands, tenements, and hereditaments, and all estate and interests therein. R.S.O. 1990, c. P.4, s. 1; 2006, c. 19, Sched. C, s. 1 (1).
Who may be compelled to make partition or sale
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. R.S.O. 1990, c. P.4, s. 2.
Who may bring action or make application for partition
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. R.S.O. 1990, c. P.4, s. 3 (1).
[14] In Akman v. Burshtein, [2009] O.J. No. 1499 (Ont. Sup.Ct.) at paras. 37 to 40 Justice Ferrier set out the test to be applied on an application for partition and sale, and addressed whether one co-owner may compel the other to sell to him or her the interest in the co-owned property:
37 A joint owner of a property has a prima facie right to partition and sale pursuant to section 2 of the Partition Act. As the Court of Appeal noted in Latcham v. Latcham, the court can only refuse to order partition and sale of a jointly owned property where there is "malicious, vexatious or oppressive conduct. This narrow standard for the exercise of discretion flows from a joint owner's prima facie right to partition.": Section 2 of the Partition Act, R.S.O. 1990, c. P.4; Silva v. Silva, 1990 CanLII 6718 (ON CA), 1990 CarswellOnt 319 (C.A.) at paras. 15 and 16; Latcham v. Latcham, 2002 CanLII 44960 (ON CA), 2002 CarswellOnt 1757 (C.A.) at para. 2.
38 Any allegation of malicious, vexatious, or oppressive conduct should relate to the partition and sale issue itself. Specifically, it is necessary to look at the reasonableness of the positions taken by the parties as it relates to the application for partition and sale. Osborne v. Myette, 2004 CarswellOnt 3331 (S.C.J.) at para. 12.
39 There is no evidence to suggest that the Applicant is acting oppressively, maliciously or vexatiously by asking to list the jointly owned Russell Hill home for sale.
40 The only real issue is when the home will be sold, not whether it will be sold. One joint owner cannot compel the other to sell to him/her, but when the property is marketed, the owner wishing to keep the property can bid in the marketplace.
[15] In Afolabi v. Fala, 2014 ONSC 1713 at para. 29 Justice Emery considered the onus of proof in an application for partition and sale:
29 The onus to show what circumstances are present in a proceeding that might require the court to exercise its discretion to refuse an application for a partition or sale order rests with the party opposing the application. That party must show the court there is a sufficient reason recognized in law why an order for partition or sale should not be made.
[16] In Osborne v. Myette, [2004] O.J. No. 3383 (Ont. Sup. Ct.) at paras. 11 and 12 Justice Ferguson discusses the type of conduct which would warrant dismissing an application for partition and sale:
11 The court has jurisdiction to order the partition and sale of property prior to trial as set out in Section 2 of the Partition Act R.S.O. 1990, c. P.4. Joint owners (tenants) have a prima facie right to partition and sale but the courts have discretion to refuse partition and sale where there has been malicious, vexatious or oppressive conduct by the party seeking an order to partition. See Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 30 R.F.L. (3d) 117 (Ont.C.A.) and Latcham v. Latcham (2002), 2002 CanLII 44960 (ON CA), 27 R.F.L. (5th) 358 (Ont.C.J.)
12 It is necessary to make a determination as to whether Mr. Myette's conduct is malicious, vexatious or oppressive. It is clear on reading the materials that there are ongoing, acrimonious issues involving ownership of property, custody, support and access. Family and criminal issues have been raised. In my view in determining whether there has been malicious, vexatious or oppressive conduct, that conduct should relate to the partition and sale issue. Specifically it is necessary to look at the reasonableness of the positions taken by the parties as it relates to the partition and sale.
[17] In Ludmer v. Ludmer, 2012 ONSC 4478 at paras.29 to 32 Justice Mesbur considers the effect of issues of ownership in the property on a motion for sale of a matrimonial home; while the context of those comments was not a partition and sale one, they are of assistance in addressing a situation on a partition and sale application where ownership issues exist. Her Honour states:
29 The husband takes the position that he is the beneficial owner of 80% of the home because he can trace the funds that purchased it from money he received from the family trust. If the marriage contract is upheld, the husband's interest in the matrimonial home will be excluded from the calculation of his net family property, reducing it to zero. Under those circumstances, the husband calculates the wife would owe him an equalization payment of $200,000, and would only have a 20% interest in the home to pay it from, her other assets having been depleted to fund this lawsuit. A 20% interest in the matrimonial home is worth only about $165,000 or so. Granting the wife a mortgage of $300,000 would eat up not only her own equity in the property, but potentially a portion of the husband's as well, leaving nothing with which she could repay him and meet her equalization obligations.
30 Even if the marriage contract is not upheld, the husband has a reasonable argument that he has a beneficial interest in the property because of his significant contributions to its acquisition. Under that scenario, the wife would have only a 20% interest in the home. The net equity in the house is somewhere around $825,000 if the wife's estimate of its value is correct. If she has only a 20% interest in the home, that interest is worth only $165,000, and is insufficient to support her claim to a mortgage of $300,000 on the property.
31 As to a sale of the matrimonial home, the husband has been living there since the parties separated more than seven years ago. The children reside with him half the time. He operates his law practice from the home. The trial is now set for October of this year. Even if I were to exercise my discretion and order the sale of the home, the evidence is insufficient for me to determine what, if any part, of the proceeds should be paid out to either party. If the property were sold, I would require all the proceeds to be held in trust pending the trial of the action where all the property issues will be decided. I assume that is not what the wife wants.
32 The issues surrounding the matrimonial home are factually complex and require an adjudication of the fundamental issues at trial in order to determine ownership of the matrimonial home. I echo the comments of Himel J four years ago that the very issues that need to be determined regarding encumbrance or sale of the matrimonial home are the issues that must be determined at trial. I am not satisfied the wife has met the evidentiary onus to support this relief. I decline to exercise my discretion to permit either the sale or encumbrance of the home pending trial. To do so would shift the financial burden and risk of the litigation to the husband, without the wife persuading me that her position regarding the home has a real chance of success.
[18] In Lall v. Lall, 2012 ONSC 5166 at para. 49 Justice Price considered the effect of a dispute as to ownership interests on the exercise of the jurisdiction to make an order for interim sale of a matrimonial home under the Partition Act:
49 An order for interim sale of a matrimonial home pursuant to the Partition Act will normally not be made where it would prejudice the other spouse's right to assert an ownership or possessory interest in the property at trial.5 The test proposed by Justice Wright in Walters v. Walters,6 and adopted by Justice Polowin in Kereluk v. Kereluk7 is whether there is a genuine issue for trial regarding the competing claims asserted by the other spouse.
[19] By way of illustration as to ownership disputes which may arise, I note the following passages from the decision of the Court in Fratric v. Fratric, 2010 ONCA 761 at paras. 2 and 3:
2 The trial judge held that the respondent had a fifty percent beneficial interest by way of resulting trust in the Kerr Street property. The appellant attacks the finding of a resulting trust on two bases: first, that the issue of resulting trust was never pleaded; second, that the trial judge failed to consider the respondent's motive for putting the company that held title to the property into the appellant's name. Finally, the appellant submits that even if there was a resulting trust, the trial judge erred in finding that the respondent had a fifty percent beneficial interest. We would not give effect to any of these submissions.
3 It is true that the resulting trust was never pleaded. However, it is apparent from the transcript of the trial that the parties were well aware that the respondent's interest in the Kerr Street property was a live issue. Counsel for the appellant at trial specifically referred to the issue in his questioning of the respondent. Further, the record is filled with questions about the respondent's contribution to the purchase of the property and his subsequent work on the property. These questions would only be relevant to the issue of either resulting or constructive trust, or possibly quantum meruit. There was no objection to any of this evidence. Additionally, there is nothing in the record to suggest that the appellant claimed that she was prejudiced by the deficiency in the pleadings. The trial judge noted in his reasons that the appellant was not disadvantaged by the fact that the respondent raised this issue at trial. While the trial judge dealt differently with the appellant's claim for a reverse constructive trust, he provided reasons for the different treatment. In particular, he found it would be "manifestly unfair" to consider that issue.
[20] In Fekete v. Begovic, 2008 CanLII 4980 (Ont. Sup. Ct.) at paras. 78 to 88 Justice Herman considers the principles regarding resulting trust and constructive trust:
78 A resulting trust arises from the intention of the parties, either inferred or presumed. In the absence of express evidence with respect to the parties' intention, it is presumed that when the person who has purchased property conveys it to another person without consideration, it was not intended as a gift. Rather the transferee holds the property in trust for the transferor. That presumption is rebuttable.
79 The principle of resulting trust was articulated by the Ontario Court of Appeal in Hamilton v. Hamilton (1996), 1996 CanLII 599 (ON CA), 92 O.A.C. 103 (Ont. C.A.) at para. 39 as follows:
A presumption of a resulting trust arises in favour of persons who contribute financially to the purchase of property but do not take title in their own name, and do not intend to give a gift of the entire beneficial interest in the property to the registered or recorded title holder. Equity presumes that the non-titled party does not intend a gift when he contributes to the purchase price of a property. The non-titled party is treated as the equitable holder of the beneficial interest; the extent of his or her beneficial interest is proportionate to the financial contribution made to acquire the property. The presumption of a resulting trust is rebuttable on a showing by the title-holder that the non-titled party intended the title-holder to have the property for his or her own benefit. The presumption of a resulting trust is also rebuttable on a showing that the transfer to the titled party was not gratuitous.
80 The rule in Hamilton v. Hamilton has been interpreted to apply only to contributions provided at the time of purchase (Dale v. Salvo, 2005 CanLII 25893 (ON SC), [2005] O.J. No. 3111, 2005 CarswellOnt 3172 (S.C.J.) at para. 45). Subsequent contributions may be taken into consideration in determining whether there is a constructive trust. It is the intention of the property at the time of the transfer of the property that is relevant (Debora v. Debora (2004), 2004 CanLII 44791 (ON SC), 8 R.F.L. (6th) 32 (Ont. S.C.J.) at para. 373).
81 The principle of resulting trust applies between married couples. However, under s. 14(a) of the Family Law Act, R.S.O. 1990, c. F. there is a rebuttable presumption in favour of a joint tenancy where the spouses formally hold the property as joint tenants. In addition, under s. 14(b) of the Family Law Act money held in a joint account is deemed to be held by the spouses as joint tenants.
82 Ms. Fekete and Mr. Begovic were not married in July 2001 (when Ms. Fekete and Mr. Begovic signed the Agreement and Acknowledgement) nor were they married in October 2003 and December 2005 (when Ms. Fekete twice transferred a half-interest in the property to Mr. Begovic). Is the burden on Mr. Begovic to rebut the presumption of resulting trust because he and Ms. Fekete were not married at the time of the transfers? Or does the parties' subsequent marriage bring into play s. 14 of the Family Law Act so that it is presumed, in the absence of evidence to the contrary, that the spouses intended to own the property as joint tenants?
83 In the case of Campbell v. Campbell (1998), 1998 ABQB 723, 229 A.R. 201 (Alta. Q.B.), the parties were in a common-law relationship at the time that title was conveyed into the name of the wife. The wife did not contribute financially to the down payment. The parties subsequently married. The court held that because the parties were not married at the time of the transfer, the onus was on the wife to establish that a gift was intended. Alberta's Matrimonial Property Act, R.S.A. 1980, c. M-9 (s. 36(2)) has a provision similar to s. 14 of the Ontario Family Law Act. However, the Albert court did not refer to the provision in reaching its conclusion.
84 The facts in Campbell are similar to the case at hand in that the property was put into joint tenancy prior to the parties' marriage in the context of what the court referred to as a "turbulent relationship". Coutu J. noted that the husband might have been trying to appease his wife when he transferred the property; however, this did not amount to an intention to gift one-half of the property.
85 No Ontario case was cited to me in which the transfer of the property occurred prior to the parties' marriage. However, regardless of who has the burden of rebutting the presumption, the evidence leads me to conclude that there was no intention that the property be a gift to Mr. Begovic. Rather, the parties agreed that Mr. Begovic was to make an equal financial contribution in return for which he would obtain a half-interest. This intention did not change when Ms. Fekete transferred title from herself alone to her and Mr. Begovic as joint tenants in 2003, and again in 2005. Ms. Fekete transferred title because she was under pressure from Mr. Begovic to do so.
86 I therefore conclude that Ms. Fekete did not intend to give Mr. Begovic an interest in the property as a gift when, at first, she signed a document indicating that she held the property in trust for herself and Mr. Begovic and when, subsequently, she transferred title from herself alone to herself and Mr. Begovic. Rather, his interest in the property depended on his equal contribution to the costs of acquisition, maintenance and renovation. In the result, I conclude that there is a resulting trust in favour of Ms. Fekete.
(vii) Is there a constructive trust in favour of Mr. Begovic?
87 Mr. Begovic did not explicitly claim a constructive trust, although he did claim compensation for the work that he did on the property renovations. He claimed that the value of his work was $225,990. I have indicated elsewhere that this figure is not credible. I have also found that the value of the parties' work contribution was approximately equal.
88 The doctrine of constructive trust, in contrast to that of resulting trust, does not depend on the intention of the parties. In order for the court to impose a constructive trust, there must be an unjust enrichment arising from the way in which title is held (Becker v. Pettkus, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834). Unjust enrichment has three elements: an enrichment of one person; a corresponding deprivation to the other; and the absence of a juristic reason for the enrichment.
[21] In Duskocy v. Duskocy, 2017 ONSC 4479 at paras. 7 to 9 Justice McDermot gave further clarification on the principles which are to govern the use of the jurisdiction to order partition or sale of property:
7 This is also a motion for the sale of the home under s. 3 of the Partition Act which read as follows:
- (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.
8 The case law generally favours an order for partition and sale of a home by a co-tenant unless the opposing party can demonstrate prejudice. The onus is on the party resisting the sale to show prejudice, and that has been defined as being malicious, vexatious or oppressive conduct by the moving party seeking the sale. Alternatively, partition and sale should not be granted where the sale will cause hardship to the responding party which amounts to oppression: see Afolabi v. Fala, 2014 ONSC 1713 at para. 29 and 33 to 35. The standard of malicious, vexatious or oppressive conduct has been confirmed by the Court of Appeal in Latcham v. Latcham (2002), 2002 CanLII 44960 (ON CA), 27 R.F.L. (5th) 358 (Ont. C.A.) where the court confirmed the high threshold required to resist the sale of a home as follows [at para. 2]:
That standard, as the Divisional Court noted, was reaffirmed by this court in Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (Ont. C.A.) and requires malicious, vexatious or oppressive conduct. This narrow standard for the exercise of discretion flows from a joint owner's prima facie right to partition.
9 There is, however, authority that a sale of the home will not be ordered where it cannot be demonstrated that the moving party would benefit from the sale, but these results appear to have occurred only where a trial is close at hand: see Ludmer v. Ludmer, 2012 ONSC 4478 and Magnella v. Federico, 2012 ONSC 5696. Barring this, malicious, vexatious or oppressive conduct must be proven by the party resisting the sale. In fact, it might be interpreted as being oppressive conduct to request an order for the sale of a home when a trial is only months away; that is certainly not the case here, and although an income report was obtained in June, 2016, the parties still have not moved this matter along and now a further income analysis will be necessary to confirm the respondent's 2016 income. The trial of this matter appears to be in the distant future.
B. INTERIM SPOUSAL SUPPORT
[22] The relevant provisions of the Family Law Act, R.S.O. c. F.3 are:
29 In this Part,
“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act. R.S.O. 1990, c. F.3, s. 29; 1999, c. 6, s. 25 (2); 2005, c. 5, s. 27 (4-6); 2009, c. 11, s. 30; 2016, c. 23, s. 47 (1).
30 Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. R.S.O. 1990, c. F.3, s. 30; 1999, c. 6, s. 25 (3); 2005, c. 5, s. 27 (7).
33 (8) An order for the support of a spouse should,
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home). R.S.O. 1990, c. F.3, s. 33 (8); 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9).
(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,
(a) the dependant’s and respondent’s current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the respondent’s capacity to provide support;
(e) the dependant’s and respondent’s age and physical and mental health;
(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent’s career potential;
(k) Repealed: 1997, c. 20, s. 3 (3).
(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,
(v.1) Repealed: 2005, c. 5, s. 27 (12).
(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public money. R.S.O. 1990, c. F.3, s. 33 (9); 1997, c. 20, s. 3 (2, 3); 1999, c. 6, s. 25 (6-9); 2005, c. 5, s. 27 (10-13).
(10) The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship. R.S.O. 1990, c. F.3, s. 33 (10); 1999, c. 6, s. 25 (10); 2005, c. 5, s. 27 (14).
34 (1) In an application under section 33, the court may make an interim or final order,
(a) requiring that an amount be paid periodically, whether annually or otherwise and whether for an indefinite or limited period, or until the happening of a specified event;
(b) requiring that a lump sum be paid or held in trust;
(c) requiring that property be transferred to or in trust for or vested in the dependant, whether absolutely, for life or for a term of years;
(d) respecting any matter authorized to be ordered under clause 24 (1) (a), (b), (c), (d) or (e) (matrimonial home);
(e) requiring that some or all of the money payable under the order be paid into court or to another appropriate person or agency for the dependant’s benefit;
(f) requiring that support be paid in respect of any period before the date of the order;
(g) requiring payment to an agency referred to in subsection 33 (3) of an amount in reimbursement for a benefit or assistance referred to in that subsection, including a benefit or assistance provided before the date of the order;
(h) requiring payment of expenses in respect of a child’s prenatal care and birth;
(i) requiring that a spouse who has a policy of life insurance as defined under the Insurance Act designate the other spouse or a child as the beneficiary irrevocably;
(j) requiring that a spouse who has an interest in a pension plan or other benefit plan designate the other spouse or a child as beneficiary under the plan and not change that designation; and
(k) requiring the securing of payment under the order, by a charge on property or otherwise. R.S.O. 1990, c. F.3, s. 34 (1); 1999, c. 6, s. 25 (11); 2004, c. 31, Sched. 38, s. 2 (3); 2005, c. 5, s. 27 (15); 2009, c. 11, s. 31.
[23] In Knowles v. Lindstrom, 2015 ONSC 1408 at paras. 8 to 12, 23 to 24, and 30 Justice Penny discusses the general principles applicable to claims for interim spousal support:
8 It is well-established that interim support motions are not intended to involve a detailed examination of the merits of the case. Nor is the court required to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. These tasks are for the trial judge. Orders for interim support are based on a triable or prima facie case. An order for interim support is in the nature of a "holding order" for the purpose of maintaining the accustomed lifestyle pending trial, Jarzebinski v. Jarzebinski, 2004 CarswellOnt 4600 (ONSC) at para. 36; Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, 2012 CarswellOnt 14841 (ONSC) at para.24.
Entitlement
9 Under Part III of the Family Law Act, "spouse" is defined to include two persons who are not married and who have cohabited continuously for a period of not less than three years. Every spouse has an obligation to provide support for him or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. The purposes of a support order under the FLA include:
(a) recognition of the spouse's contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) making fair provision to assist the spouse to become able to contribute to his or her own support; and
(c) relief of financial hardship.
10 There are three conceptual bases for entitlement to spousal support: compensatory; contract; and non-compensatory. The contractual basis is not in play here.
11 A spousal support obligation may arise on a compensatory basis in recognition that, upon relationship breakdown, there should be an equitable distribution between the parties of the economic consequences of the relationship. Entitlement may arise under the non-compensatory ground as a result of the needs of a spouse, even if that need does not arise as a result of the roles adopted or sacrifices made during the relationship.
12 The analytical approach for determining whether an order for support is warranted is as follows:
(a) determine the threshold issue of whether the claimant is a spouse within the meaning of s. 29;
(b) consider both parties' needs and abilities under s. 30;
(c) consider the purposes of a support order under s. 33(8) and, in determining the amount and duration of support in relation to need, consider all of the circumstances of the parties, including those factors listed in s. 33(9); and
(d) if a support order is warranted, choose from those forms of support contained in s. 34(1),
see Halliday v. Halliday, 1997 CarswellOnt 5077 (ONCA) at para. 9.
23 More important, however, in this case, is the argument relating to a non-compensatory basis for support -- need.
24 The parties agree that "need" in cases such as this relates not only to basic shelter and necessities but to a lifestyle that is commensurate with the lifestyle enjoyed during the relationship, provided the other spouse has the ability to pay. Thus, the accustomed standard of living during a relationship is the appropriate context in which a payee spouse's need should be assessed, Linton v. Linton, 1990 CanLII 2597 (ON CA), 1990 CarswellOnt 316 (ONCA) at para. 92; Marinangeli v. Marinangeli, 2003 CanLII 27673 (ON CA), 2003 CarswellOnt 2691 (ONCA) at para. 74.
30 The applicant is presumptively entitled to spousal support from the time she gave notice of her claim for support. To do otherwise would be to reward a party for delaying the hearing, see Vanasse v. Seguin, 2008 CanLII 35922 (ON SC), 2008 CarswellOnt 4265 (ONCA) at paras. 225 and 226. This underlying principle is relevant in this case because it has been almost three years since the applicant served her notice of application on April 26, 2012. The appropriate order, in this case, is that the applicant is entitled to interim spousal support from April 26, 2012.
[24] In Driscoll v. Driscoll, 2009 CanLII 66373 (ON SC), 2009 CarswellOnt 7393 at para. 14 Justice Lemon set out “a helpful list of principles governing interim support motions”:
14 The recent case of Robles v. Kuhn, 2009 BCSC 1163, [2009] B.C.J. No. 1699, provides a helpful list of principles governing interim support motions:
On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance;
An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it;
On interim support applications the court does not embark on an in-depth analysis of the parties' circumstances which is better left to trial. The court achieves rough justice at best;
The courts should not unduly emphasize any one of the statutory considerations above others;
On interim applications the need to achieve economic self-sufficiency is often of less significance;
Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out;
Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.
IV. ARGUMENTS OF THE PARTIES
[25] The Applicant argues that he is entitled under the Partition Act to an order now for sale of the Redan property and equal division of the proceeds. He argues that as a joint tenant he has a prima facie right to the sale; that to prevail upon me to exercise my discretion to refuse the sale, the Respondent would have had to establish that he engaged in malicious, vexatious, or oppressive conduct regarding the sale; and that the Respondent has not established that proposition.
[26] Additionally, the Applicant argues that the existence of issues as to the beneficial interests of the parties in the property which must be determined at trial, does not prevent the order for immediate sale; rather that circumstance may result in an order for disposition of the proceeds different from immediate equal division.
[27] The Applicant further argues that the Respondent should be ordered to pay him interim spousal support under the Family Law Act. He contends that his entitlement is needs based; he claims a quantum of $1458.00 per month retroactive to the date of separation, which he alleges to be July 25, 2017.
[28] Finally, the Applicant seeks an order that the Respondent secure payment of the interim order for support by a life insurance policy designating him irrevocably as the beneficiary; the policy would be in force as long as the support obligation was outstanding. The Applicant submits that the order regarding the insurance might provide for a change of terms on the direction of the court.
[29] The Respondent seeks a dismissal of the motion in its entirety. He argues that the issue of spousal support should be dealt with at trial, since entitlement is in issue.
[30] As to the issue of the sale of the Redan property, the Respondent argues that it should be addressed at trial, because the respective beneficial interests of the parties should be determined at a trial. Moreover, the Respondent also supports this argument by noting that the trial is soon, being in May of this year.
V. APPLICATION OF THE GOVERNING PRINCIPLES TO THE FACTS
A. SALE
[31] Having regard to the facts and principles set out above, including the onus on the Respondent, I am of the view that on this interim motion an order for sale of the Redan property under the Partition Act should not be made.
[32] A trial will be necessary to determine the respective beneficial interests of the parties; a full evidentiary record will then be available to illuminate the financial contributions of the parties to the property and their work on it.
[33] The doctrines of resulting trust and constructive trust may play a role in the determination of the beneficial interests of the parties at trial, given the evidence of the financial contributions of the parties and of their work on the property.
[34] Moreover, the trial date is in May of this year, relatively soon—four months from now.
[35] The Applicant argues that in cases such as Lall v. Lall, supra the reasoning requiring a trial to determine ownership interests turned on the property being a matrimonial home; and that he has a prima facie right to sale as a joint tenant, not subject to such restrictions in view of the fact that the Redan property is not a matrimonial home.
[36] I see the existence, as in the case at bar, of a genuine issue to be determined at trial as to the beneficial interests of the parties in the property as a reason to defer the sale issue to trial, especially when, as here, trial is relatively soon. It is unreasonable and unfair to order sale, when the just allocation of proceeds must await a determination of beneficial interests of the parties. Those interests may derive in this case from financial contribution or the operation of doctrines of resulting trust and constructive trust, given the evidence of financial contribution and work on the property.
[37] I, therefore, dismiss the motion for sale of the Redan property.
B. INTERIM SPOUSAL SUPPORT
[38] In deciding the issue of interim spousal support I have considered the facts and principles set out above. In particular, having regard to the facts I have borne in mind the following provisions of the Family Law Act: s. 30; s. 33(8)(c), (d); and s. 33(9) (a),(c),(d),(f),(g), (l)(i).
[39] I find that the Applicant is entitled to interim spousal support on a needs basis in the amount of $1458.00 per month, a sum within the range commended by the Spousal Support Advisory Guidelines.
[40] Although there is jurisdiction under FLA s. 34(1) (i) and (k) to order the Respondent to secure payment of the interim support by life insurance designating the Applicant irrevocably as the beneficiary, I decline to make that order in view of the short period between now and the trial, when the support obligation will be tried.
[41] For the same reason, even if there is jurisdiction to make the interim support obligation retroactive to the date of separation, I decline to do so.
[42] The interim spousal support shall be retroactive only to the date the Applicant served notice of his claim for support, being the date he served the Application, December 5, 2017.
[43] Going forward the interim support payments shall be paid on the first of each month.
VI. COSTS
[44] I shall receive written costs submissions of no longer than 3 pages, excluding a bill of costs. The Respondent shall serve and file her submissions within 14 days from the release of this endorsement. The Applicant shall serve and file his submissions within 14 days of service of the Respondent’s submissions. There shall be no reply.
Bloom, J.
DATE: January 21, 2019
COURT FILE NO.: FS-17-313-00
DATE: 2019 01 21
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Nicholas Steele v. Johanne Doucet
BEFORE: Bloom, J.
COUNSEL: Michael Kril-Mascarin, Counsel for the Applicant
Ronald Sleightholm, Counsel for the Respondent
ENDORSEMENT
Bloom, J.
DATE: January 21, 2019