COURT FILE NO.: FS-18-91557-00
DATE: 2019 01 31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Saikat Kumar Bandyopadhyay
Applicant
Self-represented
- and -
Swarnali Chakraborty
David Grant Isaac, for the Respondent
Respondent
HEARD: November 29, 2018
REASONS FOR JUDGMENT
Fowler Byrne J.
Overview
[1] There are two motions before me. As will become evident, this was not an appropriate motion to bring on a short motions day. The fact that the relief claimed in the Husband’s Notice of Motion is three and a half pages long and the Wife’s claims are two pages long are indicators of this. The number of issues to be decided and the extensive combative history between these parties, in spite of the Application being commenced less than one year ago, lends itself to a more thorough review of the parties’ history, the history of the litigation and the orders made to date. This proceeding is also in need of some strict guidance on how to proceed.
[2] The first motion was brought by the Respondent Wife and is found at Tab 16 of the Continuing Record. Some of the relief sought has already been adjudicated. In particular, on October 25, 2018, Bloom J. made a number of orders, which I summarize as follows:
a) The Husband is to pay monthly interim spousal support in the amount of $900 commencing November 1, 2018;
b) The Husband is to pay monthly interim child support in the amount of $1,036 commencing November 1, 2018;
c) Commencing November 1, 2018, the parties shall share the mortgage payments and property taxes for their jointly-owned property, the Husband paying 2/3 of these costs and the Wife paying 1/3;
d) The Husband was to immediately bring up to date the accumulated mortgage arrears;
e) The parties are to share s. 7 expenses, the Husband to pay 2/3 and the Wife to pay 1/3;
f) The Wife is to have interim exclusive possession of the matrimonial home, subject to review by motion brought by either party after three months; and
g) The Wife is also to produce on a monthly basis a written statement of any tenant in the matrimonial home and his or her rental payments.
[3] The remaining issues from her motion have been left for me to decide. Accordingly, at this hearing, the Wife sought:
a) An order that the Husband be compelled to attend a medical examination to determine the extent of his alcoholism, and that the Husband have no unsupervised access until the examination is completed and remedial steps are taken;
b) That the Husband’s access, as ordered by Shaw J. on April 17, 2018, be reduced;
c) That all email communications between the parties regarding access be made through a neutral party;
d) That a restraining order be issued against the Husband and his new partner Anindita Mookerjee, preventing them from coming within a 5 km radius of the matrimonial home; that they not harass or annoy the Wife or her parents, siblings or friends in the community, by phone or email; and that they be restrained from inquiring about the whereabouts of the child of the marriage from members of the community;
e) That the Wife be named as the beneficiary of the Husband’s life insurance policies, to provide proof of same, and that he authorize his insurers to deal directly with the Wife;
f) That the Husband provide more disclosure, unredacted, from the beginning of 2018;
g) That the Husband provide summary statements of his pension plans; and
h) That the Husband’s assets be frozen.
[4] The second motion has been brought by the Husband, which is found at Tab 20 of the Continuing Record. It is noted that this motion is almost identical to the motion brought by the Husband on July 19, 2018 (at Tab 9), which, after a number of adjournments, was struck due to his lack of confirming the motion. In the motion before me, the Husband seeks:
a) Leave to amend his Application so as to add a claim for partition and sale of the matrimonial home;
b) An order for the sale of the matrimonial home, directions on how the sale should proceed and directions on how the proceeds should be distributed;
c) Further disclosure from the Wife and compliance with the disclosure order made at the case conference;
d) An order that, commencing immediately, the Wife be responsible for her own utilities; home security; and house, life and car insurance payments;
e) An order that the Wife immediately pay to the Husband her cell phone expenses, home expenses, internet, home security, and home, life, health and car insurance payments, which he has paid on her behalf since separation;
f) That the Wife reimburse the Husband for one half of the mortgage payments, property taxes, school fees and any payments made on the home equity line of credit, which he has paid for since separation;
g) That the Wife pay the Husband occupation rent in the monthly amount of $1,450.00 as of January 28, 2018;
h) That the Wife’s CIBC G.I.C. be frozen; and
i)That the contents of the matrimonial home be divided.
Facts
[5] The parties were married on June 12, 2005. There is one child of this marriage: a son, Shihaan Bandyopadhyay, born August 7, 2012. The parties separated on January 26, 2018.
[6] As of the date of separation, the Wife was employed as a social worker for Etobicoke Service for Seniors. According to her financial statement sworn April 12, 2018, she earned $42,834.43 in 2017. At separation, the Husband was employed at I.B.M. Canada Ltd. According to his financial statement sworn February 21, 2018, he earned $113,980.65 in 2017.
[7] Each party has some savings and some debt. Their main asset is the matrimonial home, municipally located at 7059 Magistrate Terrace, Mississauga, Ontario, which they own as joint tenants. The matrimonial home is subject to a mortgage and a secured home equity line of credit. The Wife has remained in the home with the child since the date of separation, and the Husband has found alternate accommodations.
[8] This separation has been rife with conflict. Since the case conference which took place on March 12, 2018, the Husband has brought four motions, some repetitive, and the Wife has brought two. Since the hearing of this motion, and prior to the release of this decision, both parties have brought another motion. In the middle is a six-year-old boy, and the parents have completely lost sight of his best interests in their determination to fight one another.
Issues
[9] The following issues must be determined on this motion:
a) Should the Husband be compelled to attend a medical examination to determine the extent of his alcoholism, and should his access be supervised until this examination is completed?
b) Should the Husband’s access, as ordered by Shaw J. on April 17, 2018, be reduced and/or varied?
c) Should all email communication between the parties regarding access be made through a neutral party?
d) Should a restraining order be issued against the Husband and his new partner Anindita Mookerjee, as requested or in any form?
e) Should the Wife be named as the beneficiary of the Husband’s life insurance policies?
f) What other disclosure should either party provide to the other?
g) Should the assets of both parties be “frozen” or otherwise preserved?
h) Should leave be granted to amend the Application to add a claim for partition and sale of the matrimonial home?
i)Should the matrimonial home be sold, and if so, what is the process and how should the proceeds be distributed?
j) Should an order be made that the Wife immediately be responsible for her own utilities, home security, and house, life and car insurance payments?
k) Should an order be made that the Wife immediately pay the Husband for certain expenses that he incurred on her behalf since separation?
l) Should the Wife be ordered to immediately reimburse the Husband for one half of the mortgage payments, property taxes, school fees and any payments made on the home equity line of credit, which he has paid since separation?
m) Is the Husband entitled to occupation rent at this time, and if so, in what amount? And
n) Should the contents of the matrimonial home be divided at this time?
Analysis
i. Medical Examination of the Husband
[10] In her motion dated April 3, 2018, the Wife already sought this relief. On April 17, 2018, in her endorsement, Shaw J. indicated that there was no evidence presented to support this request and denied that relief.
[11] At Tab 16 of the Continuing Record, the Wife again makes this request. Since Shaw J.’s endorsement, she has had the opportunity to provide evidence to support her claim that the Husband is an alcoholic and that it impacts his access with their son. Unfortunately, the Wife has taken no guidance from Shaw J.’s endorsement. In her affidavit of October 10, 2018, the Wife’s only evidence in support of her request is para. “v” of her affidavit, where she states that the Husband’s alcoholism has “been openly demonstrated to many people”, and para. “x” of her affidavit, wherein she reports that her six‑year‑old son told her that the Husband is a chain smoker and drinks beer to excess. This is insufficient. Accordingly, no such order will be granted.
ii. Variation of Interim Access Order
[12] The issue of interim access to the child of the marriage was already determined by this court on April 17, 2018. After hearing the parties’ submissions, Shaw J. ordered that the child would reside with the Wife, with access to the Husband as follows:
a) Alternate weekends from Friday after school until Monday morning before school;
b) On the weeks following the weekend when the child is with the Wife, from Monday after school until Wednesday at the start of school; and
c) The Husband is to drop off and pick up the child for each visit.
[13] The Wife seeks to decrease this access. She wants to finish the weekend access at Sunday at 8:00 p.m. She also wishes to terminate the Monday to Wednesday alternate week access and instead have the child visit with the Husband every Wednesday after school until 8:00 p.m. She also wishes the ability to be flexible, which she interprets as the Husband giving up his time with the child when she wishes the child to attend a children’s activity or social event with her, during his access time.
[14] In support of this request, the Wife indicates that sometimes the Husband keeps the child home from school during his mid-week access visit. She speculates that the Husband is too drunk to drive him to school. She provides no evidence from the school showing what days her son is absent. She also complains that the Husband refuses to bring the child to activities or camps in the summer and does not allow him to attend children’s events in their community. The Husband indicates that these activities were scheduled during his access time, without his consent.
[15] She also alleges that he is constantly changing access arrangements and forces her to pick up the child at his residence in Port Credit. No email or text communication has been provided. The Wife indicates that the police have been called on two occasions, once at the child’s school. No evidence of the police calls was provided.
[16] In her submissions to this court, the Wife repeats what is alleged in her affidavit, but also complains that watching TV and playing video games is not quality time with the Husband. She states that the current access schedule limits the extra-curricular activities in which she can enroll her son.
[17] Also, in her submissions, she suggested another variation whereby the mid-week access visits are terminated completely and access be only on alternate weekends from Friday after school until Monday at the return to school.
[18] Given that Shaw J. has already issued an interim order on this matter, in essence the Wife is seeking to vary an interim order.
[19] Pursuant to s. 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, the court shall not make an order that varies an order in respect of custody and access, unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. The onus is on the party who seeks the variation. Under ss. 17(5) to 17(6) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), before the court decides to vary any custody order, it must be satisfied that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order. In varying the order, the court shall take into consideration only the best interests of the child as determined by reference to that change. Also, the Divorce Act specifically states that a terminal illness or critical condition shall be considered a change in circumstances. This provides an indication of the nature of the change that must be shown.
[20] In the case of Miranda v. Miranda, 2013 ONSC 4704, at para. 26, Mitrow J. gave an excellent summary of the law in this area:
A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. C.Q.B.) at para. 10. In Green v. Green, 2004 CarswellOnt 2322 (S.C.J.) at para. 14, Wood J. referred to the well founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes “clearly and unequivocally” that the present arrangement is not in a child’s best interests. In Greve v. Brighton, 2011 ONSC 4996, 2011 CarswellOnt 8814 (S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child’s best interests.
[21] As explained by Henderson J. in Wilson v. Bedard, 2016 ONSC 2653, at para. 44, the courts have tried to discourage the blizzard of unnecessary motions, particularly those involving children. Consequently, a standard higher than a material change in circumstances, as contemplated by s. 17 of the Divorce Act, has come to be expected.
[22] The court’s reluctance to vary an interim order extends to situations where a report or assessment has been filed with the court that recommends a custody and access regime different from what is currently in place. Generally, the status quo will be maintained on an interim custody or access motion, unless there is a compelling reason indicating a need for a change to meet a child’s best interests: Grant v. Turgeon (2000), 2000 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.), at para. 15. An assessment report is usually ordered for use at a trial, as opposed to being used at an interim proceeding. Only in rare cases might the information obtained by the assessor require immediate scrutiny by a judge to determine if there should be some variation of the existing custody arrangement: see Genovesi v. Genovesi (1992), 1992 8562 (ON SC), 93 D.L.R. (4th) 262 (Ont. C.J. (Gen. Div.)), at para. 21.
[23] The evidence provided by the Wife in this case falls short of meeting the test required to vary the interim custody order in place. She has provided no cogent or compelling evidence to show that the child’s physical, mental or moral welfare is in danger or that the child is at risk in any way. Therefore, she has, as the moving party, failed to meet her onus. There has been no material change in circumstances that would compel a change to meet the child’s best interests. Accordingly, there shall be no variation in access.
[24] The parties are also cautioned that they should respect the other party’s parenting time. No activities or appointments are to be arranged during the other party’s parenting time without their consent. If both parents are not willing to cooperate in enrolling their child in such activities as swimming or going to camp, they must restrict these activities to their time alone. It is up to the parent who is with the child to decide how they will spend their time. In addition, both parties are also to follow the order of Shaw J. with respect to pick up and drop off. This decision was made with the child’s best interests in mind and must be adhered to except in cases of emergency or consent.
iii. Communications Between the Parties & Restraining Order
[25] It is a sad situation when the parties are unable to even decide how to communicate with each other. It is even sadder when they feel compelled to seek an order preventing the other parent from even coming near the home in which the child resides. As indicated in the endorsement of Shaw J., the Children’s Aid Society has already identified the existence of adult conflict and recognized the risk of potential harm to the child as a result. Unfortunately, the parties seem uninterested in correcting their behaviour and appear intent on ramping up the litigation and the conflict that accompanies it.
[26] Pursuant to s. 35 of the Children’s Law Reform Act and s. 46 of the Family Law Act, R.S.O. 1990, c. F.3, the court may grant a restraining order against a person if the moving party has reasonable grounds to fear for his or her own safety or for the safety of any child in their custody. A restraining order may govern the manner in which parties communicate, as well as how they are to be in contact.
[27] In her affidavit, the Wife has indicated that the Husband is relentless in sending ongoing emails and text messages during her working hours. She claims he calls her “relentlessly on my phone 7-8 times in the evening to talk to Shihaan, - knowing that Shihaan is either engaged with activities or busy with homework.” The Wife has encouraged the Husband to call the child just before bedtime, but he refuses to do so. The Husband does not deny or even mention these allegations in his materials, but instead claims the Wife is trying to undermine his parenting time with the child. Other than this, there are no allegations that the other feels their safety or the safety of the child is at risk. There is no allegation of violence in either party’s affidavit in support of their claim for custody or access. The only allegation with respect to the Husband’s new partner is that the Wife suspects she suffers from histrionic personality disorder, which is not supported by any evidence.
[28] The current access order has most exchanges taking place at the school. This eliminates much of the contact between parties, which is a good strategy at this stage. It is necessary though, from time to time, to communicate regarding agreed-upon changes to the schedule or for school holidays. For these situations, the parties would benefit from using an online communication tool that provides a permanent record of the frequency and tone of their communications with the other. Communications should be kept neutral and child focused.
[29] It is also important that a child of this age have the ability to speak with one parent while he resides with the other. Accordingly, while the child resides with one parent, the non-residential parent shall be entitled to one telephone call per day to speak to the child at a time that is determined by the residential parent. This suitable time should be communicated through the online communication tool, as described below. No other communication between the parties is necessary.
iv. Security for Support
[30] On October 18, 2018, Bloom J. ordered the Husband to pay child and spousal support to the Wife, commencing November 1, 2018. The Wife’s request that she be named a beneficiary of the Husband’s life insurance policy was adjourned to this day.
[31] Pursuant to s. 34(1)(i) of the Family Law Act, a court may order that a paying spouse who has a policy of life insurance designate the other spouse or child as a beneficiary irrevocably. Pursuant to s. 34(1)(k), the court has the authority to order a paying spouse to obtain an insurance policy to secure payment of a support order following the payor’s death: Katz v. Katz, 2014 ONCA 606, 377 D.L.R. (4th) 264, at para. 67. Both subsections may be applied on an interim basis.
[32] In the Husband’s financial statement, affirmed on August 29, 2018, the Husband indicates that he has a life insurance policy with a face value of $500,000, in which his son is named as his beneficiary.
[33] At this juncture, it would be inappropriate to name a six-year-old child as the only beneficiary of the life insurance policy. This policy is to secure the Husband’s current obligations to both the Wife and the child. The Wife would be the child’s guardian in the event of the Husband’s death. Accordingly, it would be appropriate, on an interim basis, that the beneficiary of the life insurance policy be changed to the Wife. The parties are at liberty to review this order at trial if the Husband has concerns about the quantum of life insurance required and the financial security of the child in the event of his death.
v. Further Disclosure
[34] There has already been a disclosure order. On March 12, 2018, at the case conference, the parties entered into an order, on consent, in which each agreed to provide the other with the documentation they needed to further their case.
[35] Now each party seeks additional disclosure. The Wife seeks again the bank statements and credit card statements already ordered to be produced by Price J., but specifies that they should be unredacted. She also seeks disclosure of all life insurance policies and a copy of the Husband’s Air Miles statements from the beginning of 2018. The Husband seeks an order that the Wife provide the particulars of each bank account or credit card accounts held solely or jointly as of the date of marriage and the valuation date. He also seeks an order that the Wife provide a direction to the Husband within seven days that would enable him to obtain bank and credit card information regarding the Wife directly from the financial institutions. Finally, he asks for another order repeating the order of March 12, 2018. He seeks a penalty of $10 per day for each day she fails to provide the requested information.
[36] I shall not order what has already been ordered. If a party fails to comply with the orders within the specified time limits, the aggrieved party has their remedies under the rr. 26 to 31 of the Family Law Rules, O. Reg. 114/99. It is also inappropriate at this stage to impose a fine. A fine is something that the court has discretion to impose upon a finding of contempt: r. 31(5)(b). There is neither a motion for contempt before me, nor has a finding of contempt been made.
[37] Also, the Wife seeks pension summary statements. The Husband has already been ordered to provide a valuation of his pension by Price J. Pension summary statements are not necessary and shall not be ordered.
[38] In order to for this matter to proceed and for property issues to be finalized, full and frank financial disclosure is imperative. Accordingly, it is appropriate to order disclosure for those items not covered by previous orders. In order to move this matter forward, I will provide each party with a further period to provide the requested disclosure, failing which the other party may take the appropriate steps to enforce the order.
vi. Freezing of Assets
[39] Both parties seek a preservation order. The Wife seeks to freeze all the assets of the Husband. The Husband seeks an order that the Wife’s CIBC G.I.C. account be frozen until the finalization of the equalization payment.
[40] It should be noted that Price J. already ordered on March 12, 2018, that the Husband would not dispose of his property in India pending further order of this court or the consent of the parties in writing.
[41] Section 12(a) of the Family Law Act gives the court authority to restrain the depletion of a party’s property in order to protect the other party’s claim for equalization. Section 40 of the Family Law Act gives the court the authority to restrain the depletion of a party’s property that would impair or defeat the other party’s claim for support.
[42] It is not appropriate to make a non-depletion order that encompasses all of a party’s property in a general manner. This may prevent a spouse from dealing with his or her assets and from paying support from his or her savings, despite the fact that he or she would be the recipient of the equalization payment. Accordingly, a restraining order should be restricted to specific assets, and there is an onus on the party seeking the restraining order to prima facie show that he or she is likely to receive an equalization payment equal to the value of the specific assets: Lasch v. Lasch (1988), 1988 4581 (ON SC), 64 O.R. (2d) 464 (H.C.), at paras. 16-17, cited in Barber v. Magee, [2016] O.J. No. 7140 (C.A.), at para. 11.
[43] In the case of Bronfman v. Bronfman (2000), 2000 22710 (ON SC), 51 O.R. (3d) 336, at para. 28, Sachs J. indicated that when dealing with interim or interlocutory injunctions, the courts have developed a checklist of factors to consider. They are:
(a) The relative strength of the plaintiff's case;
(b) The balance of convenience (or inconvenience); and
(c) Irreparable harm.
[44] She stated that the first two factors are relevant to the determination of an application for a non-dissipation or restraining order under s. 12 of the Family Law Act. Clearly, a court will want to consider how likely it is that the plaintiff or petitioner will receive an equalization payment. It will also want to consider the effect that granting or not granting such an order will have on the parties. Under s. 12 (and, I would argue, also under s. 40), the agenda is to protect the spouse's interests under the Family Law Act, so that if a spouse is successful in obtaining relief under that Act, there are assets available to satisfy that relief. Relevant to this exercise is an assessment of the risk of dissipation of the assets in existence prior to trial: Bronfman, at para. 29.
[45] According to the Husband’s Net Family Property Statement, an equalization payment of approximately $14,000 will be owed to the Wife. That being said, financial disclosure is not yet complete. We also know that there will be retroactive spousal and child support owing by the Husband for the period following separation until the interim order of Bloom J. There may also be a number of adjustments in favour of the Husband. Also, both parties have claimed an unequal division of net family property in their favour. In the end, it is difficult to predict who will owe a payment to the other, if any.
[46] It is uncontested that both parties are having a difficult time meeting their obligations. The Husband, according to his evidence, has monthly expenses in excess of his income and continues to go into debt. There is a real risk that the parties will deplete their assets before this matter is resolved.
[47] Bearing in mind the schedule I intend to impose and the precarious nature of the parties’ finances, it would be appropriate to make a non-depletion order, restricted to the assets that the parties have not yet felt necessary to deplete. In particular, the Husband has two G.I.C.s from C.I.B.C. and a pension fund, which have in fact increased in value since separation. The Wife has an R.E.S.P. and investments from C.I.B.C. and the Royal Bank of Canada, which remained stable as of April 2018 and should be preserved. The only exception is if the Husband requires access to these funds to satisfy outstanding court orders in these proceedings.
vii. Leave to Amend Application
[48] The Husband seeks an order for the sale of the matrimonial home. Unfortunately, he did not claim this in his Application and therefore requires an amendment before this issue can be determined.
[49] Pursuant to r. 11(3) of the Family Law Rules, the court shall give a party permission to amend their pleading, unless it would disadvantage the other party in a way for which costs or an adjournment could not compensate.
[50] No settlement conference has yet taken place, and no trial has been scheduled. Any prejudice which the Wife may suffer in these circumstances is easily addressed by compensating her for the additional cost required to amend her Answer, in which she can plead why she believes the sale should not proceed. Accordingly, the Husband shall be permitted to amend his Application.
viii. Sale of the Matrimonial Home
[51] Given that the Application is only now being amended to include this relief, the Wife should be given an opportunity to respond by amending her Answer. After the Wife amends her pleading, the issue remains whether the Husband should be allowed to proceed with his request for the sale of the matrimonial home in advance of the trial.
[52] In Silva v. Silva (1990), 1990 6718 (ON CA), 1 O.R. (3d) 436 (C.A.), at para. 23, the Court of Appeal stated that the Family Law Act is the statute of first resort in matrimonial disputes, but it is not necessarily the only one: the Partition Act, R.S.O. 1990, c. P.4, may also be applicable. These two statutes 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. Stated more broadly, an application under the Partition Act should not proceed where it can be shown that it would prejudice the rights of either spouse under the Family Law Act.
[53] The Ontario Court of Appeal in Martin v. Martin (1992), 1992 7402 (ON CA), 8 O.R. (3d) 41 (C.A.), at para. 25, citing Batler v. Batler (1988), 1988 4726 (ON SC), 67 O.R. (2d) 355 (H.C.), and Silva, stated that s. 2 of the Partition Act provides ample authority to order the sale of a jointly-owned matrimonial home. That being said, Osborne J.A. stated that this is not to be taken to endorse the wholesale issuance of these orders. An order directing the sale of a matrimonial home before trial should only be made in cases where, in all of the circumstances, such an order is appropriate. Orders for the sale of a matrimonial home made before the resolution of Family Law Act issues (particularly, the determination of the equalization payment) should not be made as a matter of course. In addition, spousal rights of possession and any order for interim exclusive possession should be taken into account.
[54] McGee J. neatly summarizes this principle in the case of Goldman v. Kudeyla, 2011 ONSC 2718, 5 R.F.L. (7th) 149. At paras. 17, 18, and 20, she states:
A property owner, whether the holder of an exclusive interest or a joint interest has a prima facie right to sale. When the property consists of an interest in a matrimonial home, that prima facie right is subject to any competing interests under the Family Law Act that would otherwise be defeated.
To make a pre-trial order for the sale of a matrimonial home, the court must first determine whether the resisting party has established a prima facie case that he or she is entitled to a competing interest under the Family Law Act. If not, then the right to sale prevails. If so, then the motion for sale is denied unless the selling party can demonstrate that the sale would not prejudice the rights of the resisting party.
Issues arising from relationship breakdown are by their very nature inextricably intertwined. I agree with Justice Wright’s reasoning in Walters supra, 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 effect the equal division of family assets and establish post separation parenting patterns.
[55] More recently in 2013, the Ontario Court of Appeal confirmed the statement in Silva that the Family Law Act is the statute of first resort, and that it would be an unusual result if the Partition Act could be applied so as to effect a result that is inconsistent with the specific provisions and the legislative policy of the Family Law Act: Buttar v. Buttar, 2013 ONCA 517, 116 O.R. (3d) 481, at para. 59.
[56] Using the process set forth in Goldman, it is clear that the Husband has a prima facie right to the sale of jointly-owned property. Accordingly, the next step is to determine whether the Wife has a competing claim under the Family Law Act.
[57] The Wife has a number of other claims under the Family Law Act and the Divorce Act. Firstly, she has been given exclusive possession, although it is reviewable at this time. She has also sought support for herself and the child of the marriage. There will be some retroactive arrears owing to her between the date of separation and the date of the interim support order, as well as additional arrears that are owed under the current interim order. This amount will be subject to appropriate adjustments by the Husband.
[58] In addition, both parties have sought an unequal division or equalization of the net family property. The Husband’s own Net Family Property statement shows an equalization payment owing to the Wife of approximately $14,000. All of these claims may result in the Wife being in a position to purchase the Husband’s interest in the matrimonial home.
[59] Neither of the parties have addressed whether the Wife’s claims will be prejudiced by the immediate sale of the house. There are many moving parts at this juncture, and it is unclear what each party is entitled to when the house is sold.
[60] That being said, the transfer or sale of the matrimonial home must be determined soon. Both parties’ financial futures are tied to this asset. I note that Price J. already ordered on November 1, 2018, that the Wife had until November 22, 2018, to deliver evidence or a written agreement of a plan that is financially viable for both parties that would enable the Wife to continue residing in the matrimonial home. No such plan has been provided, except for the vague statement that more rooms in the home could be rented.
[61] When this matter is finally resolved or tried, an order will be made with respect to the matrimonial home. It cannot be occupied by the Wife indefinitely unless she has the means to afford the upkeep of so doing. Clearly, the Husband has no interest in the home – he simply wants his equity out of it in order to satisfy his obligations.
[62] It goes without saying that two people cannot live apart to the same standard of life as when they were living together. There are now double the housing costs, but the parties earn the same income as before separation. Sometimes parties have the means to live as they always have, such as through the assistance of family, by working more, or by taking on more debt. Eventually, though, reality must set in and the parties must put their affairs in order so that they can meet their obligations to each other and their children and carry on with their lives.
[63] The Wife has indicated her desire to remain in the home. The Wife must take positive steps to determine if she can financially afford the house if she wishes to remain and purchase the Husband’s interest in it. If she is unable to do so, she must accept the reality that the house will be sold.
[64] Accordingly, a strict deadline should be put in place so that the likelihood of the Wife purchasing the home can be ascertained as soon as possible. If the house is to be sold, the parties should take advantage of the spring market and ensure that the child has no disruptions during the school year. Accordingly, the Wife has until March 29, 2019, to determine whether she is able to purchase the Husband’s interest in the matrimonial home and reach an agreement with the Husband. The Husband and Wife are free to make whatever adjustments to the price that are agreeable to deal with past support arrears, adjustments or other monies owed to the other, and to account for the decreased costs of disposition. If the Wife is unable to reach an agreement with the Husband by this time, the Husband’s motion for sale will proceed.
xi. Occupation Rent
[65] The Husband seeks an interim order for occupation rent. The Husband has provided no evidence of the value of the occupation rent that should be paid.
[66] In light of my order for the sale of the matrimonial home, this issue is premature. There are many other issues which must be considered first, including the division of the matrimonial home expenses, support arrears and the conduct of both parties that has prevented this matter from moving forward in a productive and non-combative manner.
[67] Accordingly, occupation rent shall not be ordered at this time, without prejudice to both parties to argue their position at trial.
ix. Ongoing Expenses
[68] The issue of how the mortgage and property taxes are to be paid has already been determined in the temporary order of October 18, 2018. The Husband seeks an order that the Wife be immediately responsible for her own utilities, home security charges, life insurance, car insurance and home insurance.
[69] With respect to home insurance, it is often a requirement of the mortgagee that sufficient insurance be put in place in order to protect the lender in the event of a fire or other similar catastrophic event. Accordingly, home insurance should be treated the same as mortgage payments and property tax payments: it is an expense tied to the equity of the home. In order to be consistent with the order of October 18, 2018, home insurance should be shared by the parties, 1/3 being paid by the Wife and 2/3 by the Husband.
[70] The remainder of the expenses are personal to the Wife, and should be borne by her. The Husband will have his personal expenses to meet, such as utility and car insurance payments. As is contemplated by the support regime, the Wife is receiving regular support payments and should have the means to meet her day-to-day expenses. The goal is independence and self-sufficiency. While the Wife may not be able to attain financial independence any time soon, she should have the liberty, upon receipt of regular support payments, to choose how to spend her income and to decide what expenses she wishes to incur on a month-to-month basis, and should therefore budget accordingly.
x. Retroactive Adjustments
[71] The Husband seeks reimbursement of any expenses he incurred on behalf of the Wife from the date of separation, which include not only the Wife’s personal expenses, but also her share of expenses towards the matrimonial home.
[72] It would be premature at this stage to order the Wife to make any payment to the Husband for expenses. The issue of retroactive child and spousal support owed to the Wife for the period between the date of separation and the interim order of October 18, 2018, has not been settled. There will likely need to be an accounting as between the parties, and a set-off between what is owed by the Wife to the Husband and what is owed by the Husband to the Wife for this period. This issue is best left to trial.
xii. Contents of the Matrimonial Home
[73] It is not disputed that when the Husband left the matrimonial home, the Wife retained the contents of the matrimonial home. The Wife in her financial statement sworn April 3, 2018, valued the contents at $10,000 on the date of separation. In the Husband’s most recent financial statement, he valued the contents at $2,500.
[74] It seems to be an inordinate waste of the court’s time and resources to order a couple to divvy up the furniture and knick-knacks of a marriage, and I would urge these parties to either divide up the contents themselves or determine a monetary credit to be given to the party who does not retain any of the contents. If they are unable to do so, they are free to raise the issue again at trial, with proof of the contents retained by each party and proof of value to be attributed to them, which can form part of the equalization calculation.
Conclusion
[75] All interim matters have now been decided. Each party’s obligations have been set forth in the various court orders that have been made. They know where their child should live at any given time. They know what information must be provided to the other. They know their support obligations and their obligations with respect to the matrimonial home. They know the next steps with regards to the sale of the matrimonial home. The report of the Office of the Children’s Lawyer has been filed. The parties now have the next few months to gather the information they have been ordered to provide, and the Wife can determine if she can purchase the matrimonial home. There should be no further need for interim motions, except as provided for below. The parties should gather the necessary information, determine their positions and then move to a settlement conference. Given the amount of time I have put into this motion, it would be appropriate that the settlement conference be scheduled before me. To be clear, I am not seized of this matter, but I do order that the settlement conference be held before me.
[76] Accordingly, I made the following orders:
a) Both parties shall subscribe immediately to ourfamilywizard.ca. Each party shall pay their own annual subscription. The parties shall renew their subscription to ourfamilywizard.ca each year until the child is no longer a child of the marriage, written consent or until a further court order;
b) The parties shall not communicate directly with the other except through counsel, or, in matters related to their child, through ourfamilywizard.ca. All email communications through ourfamilywizard.ca shall be civil, void of commentary and be child-focused;
c) The Husband shall name the Wife as the irrevocable beneficiary of his life insurance policy held through Foresters Life and shall maintain that designation until further court order. The Husband shall provide to the Wife proof of this change in designation within 30 days;
d) The Husband shall within 30 days sign whatever forms are necessary to give the Wife the authority to make inquiries and receive information directly from the insurer regarding the status of the policy and the beneficiary designation;
e) The Husband is granted leave to amend his Application to include a claim for partition and sale of the matrimonial home located at 7059 Magistrate Terrace, Mississauga, Ontario, and that amendment shall be made on or before February 8, 2019;
f) The Wife shall have until March 8, 2019, to amend her Answer, in response to the amended Application, regarding the claim for partition and sale of the matrimonial home. The Husband shall pay to the Wife within 30 days the sum of $500 to compensate her for the cost of amending her Answer;
g) The Wife is restrained from depleting, selling or otherwise dealing with the following accounts: (1) RESP account 796663-159 held at CIBC; (2) RRSP (G.I.C.) account 41005349 held at CIBC; and (3) RRSP account 590091005 held at the Royal Bank of Canada, pending further order of this court;
h) The Husband is restrained from depleting, selling or otherwise dealing with the following accounts: (1) RRSP (G.I.C.) account 79663-164 held at CIBC; (2) RRSP (G.I.C.) account 46112-258 held at CIBC; and (3) Pension account 0342030 held with Sunlife Financial, Plan 0342030, pending further order of this court, except to satisfy any payments ordered in these proceedings, with proof of such payment being provided forthwith to the Wife’s counsel;
i)Commencing November 1, 2018, the Wife shall be responsible 1/3 of the home insurance payments and the Husband shall be responsible for 2/3 of home insurance payments, without prejudice to either party seeking a retroactive adjustment at trial;
j) Commencing November 1, 2018, the Wife shall be solely responsible for her own car insurance, life insurance, home security, home utilities and personal expenses;
k) If not already provided, the Husband shall provide the following to the Wife on or before March 1, 2019:
unredacted copies of statements from all his bank accounts, lines of credit and credit card statements, either owned solely or jointly, wherever those accounts situate, for the period of November 1, 2016, to December 31, 2018;
evidence of all life insurance policies; and
unredacted copies of all his Air Miles statements for 2018.
l) If not already provided, the Wife shall provide the following to the Husband on or before March 1, 2019:
- particulars of each bank account or credit card accounts held solely or jointly as of the date of marriage and the valuation date;
m) Each party shall serve and file, on or before 4:30 p.m. on Friday, March 15, 2019, an affidavit which lists each item they were ordered to disclose and the dates that the disclosure was given, with proof of the disclosure;
n) On or before 4:30 p.m. on Friday, March 15, 2019, the Husband shall serve and file an affidavit, with proof attached, of all the payments he has made towards the mortgage, property taxes and property insurance, to bring them up to date as of October 31, 2018, and his 2/3 share of these payments since November 1, 2018;
o) On or before 4:30 p.m. on Friday, March 15, 2019, the Wife shall serve and file an affidavit, with proof attached, or all the payments she has made towards her 1/3 share of the mortgage, property taxes and property insurance since November 1, 2018;
p) No motions for compliance with these orders may be made prior to March 15, 2018. After March 15, 2018, and only if a party’s disclosure has been completed, that party may bring a motion against the other party, seeking the appropriate remedies for non-compliance pursuant to the Family Law Rules;
q) The Wife shall, by 5:00 p.m. on March 29, 2019, determine whether she is able to purchase the Husband’s interest in the matrimonial home and to come to an agreement with the Husband as to the amount to be paid as between the parties;
r) The Husband’s motion seeking an order for the sale of the matrimonial home is adjourned to April 25, 2019, following the settlement conference. If the parties are not able to reach a suitable agreement, the motion will be argued on that day; the Husband shall have no more than 20 minutes to argue the motion, the Wife shall have no more than 20 minutes to respond, and the Husband shall have no more than 5 minutes in reply;
s) The Husband’s claim for occupation rent is dismissed, without prejudice to both parties to argue their position on that issue at trial;
t) The Husband’s claim for reimbursement of expenses he incurred following the date of separation is dismissed, without prejudice to both parties to argue their position on that issue at trial;
u) This matter is otherwise adjourned to a settlement conference, which shall be held before me in the week of April 15, 2019, with the specific date to be scheduled with the trial coordinator;
v) Each party was partially successful on this motion. If the parties are unable to settle costs themselves, both parties shall serve and file their written submissions on costs by 4:30 pm on Friday, February 15, 2019, which shall be limited to two pages, double spaced, single sided, exclusive of a costs outline and case law. The parties shall have until 4:30 pm on Friday, March 1, 2019, to serve and file their responding submissions, with the same size restrictions. If no submissions are filed, there shall be no costs on either motion.
[77] In a final note, the parties have been given an opportunity to resolve all their issues within the next few months. It will be up to them if they wish to keep fighting, to the detriment of their son, or concentrate on moving forward, settle their outstanding issues in a civil manner and carry on with their new lives. Hopefully, the choice is obvious.
Fowler Byrne J.
Released: January 31, 2019
COURT FILE NO.: FS-18-91557-00
DATE: 2019 01 31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Saikat Kumar Bandyopadhyay
Applicant
- and -
Swarnali Chakraborty
Respondent
REASONS FOR JUDGMENT
Fowler Byrne J.
Released: January 31, 2019