COURT FILE NO.: FS-18-0137-00

DATE: 2019 12 02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

CHRISTINE DELONGTE

Applicant

• and -

MICHAEL DELONGTE

Respondent

Heather Hansen and Jenna Beaton, for the Applicant

Andrew Kania, for the Respondent

HEARD: July 17, 2019

REASONS FOR JUDGMENT

SHAW J.

Introduction

1The applicant/wife and respondent/husband separated in March 2018 after twenty years of marriage. They have two children who are 16 and 14 years old. The applicant and the children have been living in the matrimonial home since the parties separated. While there is no interim order for support, the respondent currently pays $9,500 per month towards the carrying costs of the matrimonial home and other expenses for the applicant and children. In May 2018, after the parties separated, the respondent purchased a new home, which is near the current matrimonial home and the children’s school.

2The application was commenced in June 2018. Regrettably, there are now two boxes of affidavits filed in connection with various motions, which have been before the court in the past year. A number of interim orders have been made regarding various financial issues. There is also an interim order regarding the respondent’s access to the children.

3The respondent seeks an order under the Partition Act, RSO 1990, c. P.4 for the partition and sale of the jointly owned matrimonial home. The applicant resists the sale, as she believes it is in the children’s best interests to remain in the home they know. The applicant hopes to be in a position to eventually purchase the respondent’s half interest. While the applicant sought exclusive possession in a notice of motion dated March 6, 2019, (about nine months after the litigation was commenced) she did not pursue that relief on this motion.

4In the event the relief is granted and I order the home to be sold, the applicant seeks an order for monthly child and spousal support, in accordance with the applicable guidelines. In that regard, there is a dispute regarding each parties’ income. Both are seeking to impute income to the other, beyond the amounts they declared to Revenue Canada.

5The respondent’s position is that – because he has not yet received a report from the expert he has retained to determine the applicant’s income and the value of her businesses – the applicant’s motion for spousal support should be adjourned, pending receipt of that report.

6The applicant resists this, and takes the position that there is sufficient evidence before the court to make findings regarding their respective incomes and sufficient evidence to impute additional income to the respondent. She further takes the position that there is sufficient evidence to make an order that he pay child and spousal support, in the event I order the sale of the home.

7The applicant also seeks an interim order for the sale of other jointly owned property. The respondent agrees that cottage property municipally known as 8 Tranquility Ave, Tiny, Ontario, shall be sold. If not yet done, I order that property shall be forthwith listed for sale.

8There is a second cottage property that is owned jointly with another couple. This cottage is located at 12 Beachview Road, Tiny, Ontario. If one of those parties oppose the sale, either the applicant or respondent will have to seek an order for its sale under the Partition Act.

9To describe this litigation as acrimonious would, unfortunately, be an understatement. There have been various motions and numerous lengthy affidavits exchanged by the parties, each containing allegations of bad conduct regarding the other party. While this motion was scheduled for two hours, given the multiple volumes of material filed, it was completely unrealistic for the parties to expect that all of the disputed issues could be argued in a fulsome fashion in anything less than a full day. Litigation by “affidavit war” is costly, both financially and emotionally for all involved. Furthermore, given the numerous allegations made by the parties, it very difficult to resolve the conflicting evidence on a motion, without the benefit of cross-examinations. At some point, the parties need to move forward to a trial.

10While constraints on judicial resources make securing access to long motion dates very difficult, it is not in the best interests of family law litigants to compress an otherwise full-day motion into a shorter time period. This is particularly so in a matter such as this where there are significant assets, the values of which are in dispute, and both parties operate and own business interests, resulting in disputes in regarding their respective incomes. There are also various allegations of each party failing to disclose income or assets, as well as other alleged acts of misconduct.

11At the heart of this matter, there are two young children deserving of parents who are less focused on their animosity towards each other. The emotional costs of this type of litigation are, too often, borne by the children and the negative results of this can be long-term.

12For the reasons that follow, I order that the matrimonial home be listed for sale by July 2, 2020, when the children have completed their school year.

13The parties are to schedule a further one-day motion before me to make submissions on income and child/spousal support. That motion must be heard by no later than the end of May 2020. Pending the result of that motion and my finding regarding incomes and support, the respondent shall maintain the current status quo payment of $9,500 per month for the carrying costs of the matrimonial home and other expenses for the applicant and children.

14Prior to the sale of the home, the applicant may make an offer to purchase the respondent’s half interest in the matrimonial home. To be clear, the respondent is not obligated to sell his half interest in the matrimonial home to the applicant, even if she is financially able to make an offer to do so. It is, however, an option the parties may wish to consider as part of a global resolution of all issues which may avoid the costs of proceeding to trial.

15I expect that, prior to the motion to argue income and support, both parties will serve and file all expert reports they intend to rely upon regarding the other’s income. Both parties shall also serve and file all income information for the 2019 tax year filed with Revenue Canada. I fully expect that all disclosure issues will be resolved before I hear the motion.

Applicable Legal Principles

16The jurisprudence is clear that a requesting party has the prima facie right to sell a jointly owned property under s. 2 of the Partition Act. The onus is on the resisting party to show sufficient reasons why the order for sale should not be made.

17In Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 75 D.L.R. (4th) 415 (Ont. C.A.), the court dealt with the interplay between the Partition Act and proceedings commenced under the Family Law Act, R.S.O. 1990 c. F- 3, as amended, when dealing with the matrimonial home. The Court found at para. 23 that the two Acts are not incompatible but:

Where substantial rights in relation to jointly owned property are likely to be jeopardized by an order for partition and sale, an application under the Partition Act should be deferred until the matter is decided under the Family Law Act. Putting it more broadly, an application under section 2 should not proceed where it can be shown that it would prejudice the rights of either spouse under the Family Law Act.

18In Afolabi v. Fala, 2014 ONSC 1713, the Court found that, should an application be made for sale under the Partition Act, the opposing party must provide evidence of malicious, vexatious or oppressive conduct on behalf of the spouse who is resisting the sale. If the spouse opposing the sale can establish such conduct, the Court has narrow discretion to refuse to order the sale of the home: Latcham v. Latcham, (2002) 2002 CanLII 44960 (ON CA), 27 R.F.L. (5th) 358 (Ont. C.A.).

19When considering oppressive conduct, the Court may consider whether the sale of the home would cause hardship to the opposing party or the children. For example, if the opposing party did not have the ability to find somewhere to live or the children would be deprived of a place to live: King v. Shaw, 2017 ONSC 3050, 94 R.F.L. (7th).

20In Goldman v. Kudeyla, 2011 ONSC 2718, 5 R.F.L. (7th) 149, McGee J. summarized the interplay between the Family Law Act and the Partition Act as follows:

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 interest under the Family Law Act that would otherwise be defeated. 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 is sale is denied unless the selling party can demonstrate that the sale would not prejudice the rights of the resisting party.

…issues arising from relationship breakdown by their very nature inextricably intertwined. I agree with Justice Wright’s reasoning in Walters confirmed in Kereluk, supra that orders for the sale of the home should not be made as a matter of course. One must always be mindful of the whole of the proceeding and the need to move forward as fairly and expeditiously as possible. At the same time, determinations must have a starting point. The sale of the matrimonial home is often the most appropriate catalyst to affect the equal division of family assets and establish post separation parenting patterns.

21As McGee J. noted, there have been cases in which the Court has denied interim motions for sale. In each, there were compelling circumstances favouring the resisting party such as the availability of trial within a short period, prejudice to the resisting party’s right to an equalization payment or the need to preserve the residence for a vulnerable spouse or child who might retain the home at trial.

Position of the Parties

22The respondent’s position is that the jointly owned matrimonial home should be sold, given the significant equity it holds. He proposes that each party should receive $500,000 from the net proceeds of sale, with the balance being held in trust. He proposes that, when the home is sold, he will commence paying child support based on his 2017 income of $250,000. He proposes that the determination of s. 7 expenses and the quantum of spousal support should be adjourned, pending receipt of an expert report regarding the applicant’s income.

23The applicant’s position is that the matrimonial home should not be sold. She proposes that two other jointly owned properties should be sold so that each party can access the equity in those properties. Pending trial, the respondent should continue to pay the current carrying costs for the matrimonial home and other related expenses which total $9,500 per month.

24In the alternative, if the matrimonial home is ordered to be sold, she proposes that the respondent pay spousal support of $9,127 per month and child support of $4,921 per month, based on the applicant’s income of $94,000 and the respondent’s imputed income of $386,969.

Background

25Since the parties separated on March 19, 2018, the children and the applicant have lived in the matrimonial home. The home is close to the children’s school and it is the only home they have lived in.

26The applicant is the owner and the sole shareholder of two renovation businesses. The value of the businesses is in dispute. The applicant has served a report that says the businesses have little value. The respondent is currently in the process of having the businesses valued by BDO, a certified business valuator. The report was not available when I heard this motion but the respondent anticipates the businesses will be valued between $1.5 and $2.5 million.

27The respondent also has a number of business interests. It is not clear if the values of those interests are in dispute.

28There is a significant dispute regarding the income the applicant earns from her businesses. The applicant’s position is that her income is $94,000. The respondent alleges that she earns more income than declared for tax purposes, as much of her business is allegedly transacted through cash payments. The respondent has requested an income analysis report from BDO but it was not available when I head this motion. The respondent’s evidence is that he anticipates the expert will opine that the applicant’s income is significantly greater than she has deposed and likely similar to the income he earns.

29There were allegations that the expert report could not be completed in a timely fashion due to issues with disclosure. Both parties have made allegations of ongoing disclosure issues although, based on the volume of material filed, there has been disclosure by both parties. Again, all disclosure issues must be resolved by the time I hear the income and support motion prior to the end of May 2020.

30The respondent works for Fibremetics Corporation and the applicant says he is vice president. (It is not clear if that is it dispute.) He claims that his base salary is $100,000. He earns commission income which varies each year. His evidence is that his income since 2014 has been as follows:

2014 $210,957

2015 $275,914

2016 $197,281

2017 $210,684

2018 $250,251

He claims his 2019 income will be $162,000.

31According to the respondent’s income tax returns, his 2018 income was $307,695, which included $55,000 as a capital gain.

32The applicant’s position is that additional income ought to be imputed to the respondent, including income earned from various rental properties and other businesses he owns. She alleges that his lifestyle suggests that he earns far more income than he declares. It is anticipated that when I hear the income and support motion, the parties will have completed their 2019 income tax returns and will have made full financial disclosure to each other, including disclosure of any additional income earned by the respondent through any other business interest or rental income that he receives.

33The respondent relies on a letter from a real estate agent dated May 16, 2019, which states that the current market value of the matrimonial home is $2.59 million. Given the mortgage and line of credit registered on title, there is equity of approximately $1.7 in the matrimonial home. The respondent proposes that the home be sold and that $500,000 be released to each party, with the balance held in trust pending a final resolution of the property issues. He proposes that such a payment would assist the applicant to purchase a new home and the respondent could pay his debt.

34In addition to the matrimonial home, the parties also own the following:

Applicant’s Classification

Address

Ownership

Matrimonial home

7203 Second Line West, Mississauga

100% owned by the parties as joint tenants

Cottage Property

8 Tranquility Avenue, Tiny

100% owned by the parties as joint tenants

12 Beachview Road, Tiny

50% owned by the parties as joint tenants 50% owned by Krista and Raymond Loya as joint tenants

74 Wendake Road, Tiny

50% owned by respondent indirectly through a holding company he owns with Raymond Loya, 1937469 Ontario Inc.

Commercial Property

214-2550 Matheson Blvd East, Mississauga

100% owned by respondent indirectly through a holding company, 1957467 Ontario Inc.

Michael’s Primary Residence

1115 Hickory Hollow Glen

100% owned by Michael, acquired post-separation

Recreational Property

Address unknown, Blue Mountain

Acquired post-separation, Michael's ownership interest is unknown

35This chart was adapted from the applicant’s motion materials and there may be a dispute regarding the property in Blue Mountain. There is no dispute about what has been identified as the three cottage properties. One of those properties, identified as 8 Tranquility Ave in Tiny, Ontario, is owned jointly by the parties and there is an agreement that it shall be sold.

36When the respondent left the matrimonial home in March 2018, he bought another home close to the children’s school. He paid $710,000 for that home and there is a mortgage on title for approximately $220,000. It is not clear how the respondent funded the purchase of that home. Nonetheless, one of the reasons the respondent is requesting the immediate sale of the matrimonial home is that he cannot afford to maintain the monthly payment of $9,500. The respondent alleges that he is “drowning in debt” – a phrase repeated by his counsel numerous times during submissions. The respondent’s evidence is that he now has $50,000 in debt and no savings.

37The respondent had proposed that, pending the applicant securing alternative living accommodations, if the matrimonial home was sold, the children could stay in his home and he and the applicant could set up a nesting arrangement so that they would spend alternate time living in the home with the children. Quite frankly, that proposal is illogical given the high degree of conflict between the parties. That sort of parenting arrangement would require a level of cooperation that is clearly beyond the parties’ abilities, at this time.

Analysis

a) Sale of the home

38The applicant’s position is that the home should not be sold as it is the only home the children have known. The children have significant attachment to that house, it is close to their school and it provides them with a sense of stability. If that was a sufficient basis to resist the sale of a matrimonial home following separation, no matrimonial home would be sold in situations where a spouse wished to remain in the home with the children. In most cases, the children are attached to the home, it is close to their school and it provides a sense of stability. That is not, in and of itself, a sufficient basis to defeat a presumptive right to sell a jointly owned property, pursuant to the Partition and Sale Act.

39The applicant submits that selling the matrimonial home is extreme relief. I do not agree. An order for the sale of the matrimonial home is relief that is routinely sought in matrimonial litigation. It is not uncommon that parties wish to access the equity in the matrimonial home for a variety of reasons such as purchasing other property or paying debt.

40Based on a review of the jurisprudence as set out above, there is no basis for the applicant to successfully resist the sale of the matrimonial home. Although she alleges that the children have been having difficulty with the separation and have attended counselling, that is an all-too-common occurrence in high conflict situations. The children are young teenagers and there was no independent evidence led as to how the sale of the home might have a detrimental impact on their well-being, other than what can be typically expected when parties separate and then reformulate a new family unit after separation. Separation is a very dramatic and life-changing event for all involved. It means moving on from the familiar – often including the matrimonial home – to the new and unfamiliar.

41In most situations where parties separate, there is a transitional period of time when financial necessity dictates that the home is sold and the parties must move into their own respective homes. It is to be expected that the children will be dislocated from their home, which will be difficult – as it always is in these situations.

42Based on a review of the evidence, there is no child-focused reason not to sell the home.

43The plaintiff has failed to lead any evidence to support her claim for exclusive possession on a final basis. She wisely did not pursue such an order on an interim basis as she would not have been successful. The respondent has moved out of the home. There is no evidence of any ongoing threat or danger that might require some degree of protection that can be found in an exclusive possession order.

44The parties own a number of assets. The applicant suggests that, if the respondent is suffering from financial hardship (which she disputes), he can remedy his financial challenges through selling other jointly owned assets or assets he owns in his name or through his corporations, such as the commercial property on Matheson Blvd East. The fact that a party owns other assets does not displace a joint owner’s prima facie right to have a property sold pursuant to the Partition Act.

45The applicant alleges that she will be advancing a claim for an unequal division of property at trial, and that a sale of the home at this juncture could prejudice her claim in that regard. The applicant has led insufficient, if any evidence, to support her claim in that regard. A bald assertion on a motion that a claim for an unequal division of property will be pursued at trial is insufficient to defeat the prima facie right of a joint tenant to seek the sale of a jointly owned property.

46At this time, both parties are claiming that the other will owe an equalization payment. The applicant’s concern is that, if the matrimonial home is sold and funds disbursed prior to trial, that may prejudice her ability to collect on any equalization payment owing to her. The same argument is made regarding the possible prejudice to her claim for an unequal division of property. As is often the case when a home is sold prior to trial, if the parties cannot agree on how funds are to be disbursed, the net proceeds are held in trust pending further court order or agreement. Accordingly, if the parties cannot agree on how the funds are to be disbursed, they will be held in trust pending trial or further court order. In that way, the applicant’s potential claims will not be prejudiced. The parties should be mindful that there are some instances where only one party receives a portion of the proceeds of sale of the matrimonial home prior to trial and the balance are held in trust pending trial if there are disputes regarding the quantum of equalization payment that will be owing by one to the other.

47The applicant has failed to identify a competing interest under the Family Law Act that would defeat a joint owner’s prima facie right to sale under the Partition Act. There are no compelling circumstances to deny sale of the home. The applicant has not advanced evidence that she will be entitled to exclusive possession of the home on a final basis and there is no child-focused reason to oppose the sale. There is no evidence on this motion that there would be any prejudice to the applicant’s right to an equalization payment, if the home was sold. The proceeds, or a portion thereof, can be held in trust, if necessary.

48Furthermore, this matter will likely not be ready for trial until January 2021, which makes an early trial date impossible.

49While the applicant would like to purchase the respondent’s half interest in the property, that is not a competing interest or a compelling reason to resist the sale. The applicant can only do so if the respondent agrees to sell his interest to her. There is no right of first refusal, meaning that the respondent can insist that the home be listed for sale. The applicant can make an offer for the property, like any other third party, once it is listed for sale to the public if the respondent does not agree to sell his interest to her prior to the listing.

50As the children are part way through their school year and, as homes are often listed for sale during the summer months to maximize the selling price, the sale of the home shall be delayed until the end of the school year and the house shall be listed by July 2, 2020.

b) The Respondent’s Financial Circumstances

51I will now address why I reject the husband’s assertion that he is “drowning in debt” and cannot maintain the monthly payment of $9,500 he has been making since March 2018.

52A review of the most recent financial statement he filed is inconsistent with his assertion that he is drowning in debt. According to the respondent’s most recent financial statement sworn July 8, 2019, his total debts on the date of separation were $752,937. Of that amount, approximately $603,659 was in connection with mortgages owing on the matrimonial home and cottage property and a line of credit on the matrimonial home. The balance of the debt was for notional taxes and disposition costs of various assets. There was no credit card debt.

53As at July 8, 2019, his total debt had grown by approximately $50,0000 to $804,229. The only increase in debt was for a line of credit owing for his new home which totalled $220,838 – he did not include the notional and tax disposition costs that he had as of the date of separation. Again, there was no credit card debt as at July 28, 2019. According to the respondent’s sworn financial statement, there was little (if any) change in his debt situation between the date of separation and July 28, 2019, other than the new line of credit for the home he purchased post-separation.

54In the respondent’s financial statement, he swears that the monthly shortfall between his income and expenses is $23,209. Given that sizeable monthly deficit, one would expect to see a significant increase in debt to fund that deficit. As indicated above, this has been little if any change in his debt load, other than the increased debt due to his purchase of a home after the date of separation.

55Based on a review of his financial debt listed in his financial statement, the respondent is not “drowning in debt” and suffering financial hardship as a result of these monthly payments.

56The respondent acknowledges that, six months before the parties separated, he withdrew $424,500 from a joint line of credit that was secured against the matrimonial home and made an investment that was put in his name. According to his financial statement (sworn July 8, 2019), on the date of separation he had investments and bank accounts that totalled $1,105,715.54. On July 8, 2019, his investments totalled $429,504. The largest investment change was an investment at the Royal Bank of $566,917 on the date of separation that had a value of $60 on July 8, 2019. What is not clear is if that was the investment used to finance the purchase of his new home. When the value of the respondent’s new home is considered, there is no change in his investment position between the date of separation and July 8, 2019.

57I also note that the respondent has business interests in various corporations that he valued at $656,000 on the date of separation that have increased in value to $728,500 by July 9, 2019.

58In support of his position concerning his dire financial circumstances, the respondent relied on an email from the TD Bank dated May 28, 2019, in which it states he was not approved for any new credit because his current debt levels exceeded the required debt-servicing thresholds. That does not appear to be consistent with the respondent’s sworn financial statement. I prefer the evidence from the respondent’s sworn financial statement to the email.

59If the respondent is having difficulty meeting his debt obligations at this time, perhaps he should have considered that before he purchased a new home prior to selling the matrimonial home.

Conclusion

60Both parties have made accusations about the other’s failure to provide complete disclosure. Both parties allege that the other is under-reporting their respective income and assets. The serious accusations made by each, and the significant volume of affidavit material and financial and other records filed for this two-hour motion, underscores the financial and emotional cost of family law litigation. Such costs can be devastating for a family.

61The remaining issues to be resolved necessitate a full-day hearing in order to comprehensively address the issues of income and child/spousal support. Unfortunately, this will increase the cost to the parties but is unavoidable given the volume of materials that the parties have chosen to file for this motion.

62Prior to the next motion date, the parties will each file one updated affidavit regarding their 2019 income and any other additional expert reports and financial reports or records upon which they intend to rely to deal with the issues of income and support.

63I order that the matrimonial home located at 7203 Second Line West, Mississauga, Ontario, shall be listed for sale by July 2, 2020. The parties may seek further court direction if they cannot agree on the terms of sale such as listing agent and price.

64Pending the sale of the home, the respondent shall maintain the current status quo payment of $9,500 per month.

65If the parties cannot agree on how the net proceeds of sale are to be disbursed, the proceeds are to be held in trust pending further court order or agreement.

66The parties shall schedule a full-day motion before me to be heard prior to the end of May 2020 to deal with the issues of income and interim child and spousal support.

67Pending the sale of the home, the parties are encouraged to engage in settlement discussions to resolve all outstanding issues which may include the applicant purchasing the respondent’s half interest in the matrimonial home, if she is financially able to do so.

68If the parties cannot agree on costs, they can address the issue when the matter is before me on the next motion date. They must both file their costs outline prior to the next motion date.

L. Shaw J.