Collini v. Collini, 2020 ONSC 3924

COURT FILE NO.: D220/19 DATE: 2020-06-25

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Anna Maria Collini, Applicant AND: Tommy Sandro Collini, Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: Maria Lucarelli for the Applicant; Bruce Macdonald for the Respondent

HEARD: June 25, 2020

Endorsement

[1] The Respondent moves for partition and sale of the jointly owned matrimonial home. The Applicant moves for exclusive possession of the home and for production of documentary evidence.

[2] The parties separated in 2018 after 23 years of marriage. They listed the matrimonial home for sale twice in 2018 and the Respondent got a private offer that the Applicant did not find acceptable. Since the spring of 2019, when the Respondent moved for partition and sale, the Applicant’s position has been that the property should not be sold and that she should be allowed to buy the Respondent’s interest.

[3] The parties have one son, now 20, who is not disabled and is not in post-secondary education. The parties’ line 150 incomes over the years have been generally comparable. In October 2018 the Respondent moved out of the matrimonial home and bought a house in Ridgeway. He used the proceeds of sale of another property. The Applicant and the son are still in the matrimonial home. The Applicant has maintained the matrimonial home on her own ever since, including the mortgage payments. On the other hand, she has not paid any occupation rent. Also, a man lives in the house and she reports no contribution by him to the household expenses. The Applicant emphasizes that she has not received spousal or child support. It seems, however, that neither may be due: the child is grown, and the parties have comparable incomes.

Partition and sale

[4] In general, partition and sale of jointly owned property is ordered under the Partition and Sale Act as of right, absent malicious, vexatious or oppressive conduct: Davis v. Davis, [1954] O.R. 23 (CA). If the property is a matrimonial home, however, first resort must be made to the Family Law Act. Partition and sale of a matrimonial home should not be ordered if it would prejudice the other party’s substantial property rights under the Family Law Act: Silva v. Silva, [1990] O.J. No. 2183 (CA). A helpful review of the authorities is also found in Khan v. Khan, 2019 ONSC 4687.

[5] The Applicant wants to buy the Respondent’s interest in the matrimonial home, although she has not offered a price. It seems at this point that she will not be able to afford to buy out the Respondent unless he is ordered to make a substantial equalization payment. Even if one is made, the court could not, in effect, create a right of first refusal by ordering one party to sell his or her property to the other: Barry v. Barry, 2020 ONCA 321. The Applicant would have to compete with every other buyer on the open market. Her eventual purchase of the property is not inevitable whatever happens.

[6] The Applicant’s argument is essentially this:

a. it would benefit our child to stay in the house; b. I want to buy it, but I cannot afford to until equalization is ordered; c. it will take a long time for equalization to be ordered because it is so complicated – just look at this massive disclosure request I made a few days ago; d. if the property is sold, the proceeds will have to be held in trust until equalization is determined and I will not be able to buy a new house in the mean time; and e. I am in financial difficulties.

[7] The child’s status as unemployed does not make him a child of the marriage within the meaning of the Divorce Act, pandemic or no.

[8] I do not accept that the entire proceeds of sale need to be kept in trust until equalization is decided. The Respondent claims an equalization payment of about $70,000. The Applicant claims a payment of about $80,000. The difference is essentially attributable to the treatment of the proceeds of sale of the property that the Respondent used to buy his present residence.

[9] The Respondent got $260,000 from the sale of a real property. He says that the property was not a family asset, because he bought it with inherited money. The evidence suggests, however, that at most $65,000 worth of the original purchase could have come from his grandmother’s estate. It may have lost its status as inherited property when it was invested in another, previous property that was subsequently sold. The Respondent’s father left him money, too, but not until after the property that produced $260,000 had been purchased. The Respondent’s position is not strong on this issue.

[10] If the matrimonial home is sold for the $450,000 that the Respondent thinks it is worth, he estimates that each party will have $175,000 equity. The Respondent does not need the money right away. The Applicant does if she wants to avoid homelessness. She is not likely to dissipate her share. She will have to invest it in real estate.

[11] The Applicant says that the Respondent has acted oppressively by refusing to contribute to the upkeep of the home, by trying to sell it without her consent and by refusing to renegotiate the mortgage at a lower repayment rate when it expired. As to the first argument, I do not see the oppression. She has de facto exclusive possession of the property and she pays no occupation rent. As to the second argument, the Respondent at one point signed acceptance of an offer to purchase thinking that the Applicant had also agreed. When it turned out that she did not, the deal did not go through. As to the last point, the Respondent’s refusal to agree to extend the mortgage at a lower repayment rate was reasonable given his position that the house should be sold.

[12] I conclude, then, that there has been no oppressive conduct and that partition and sale would not prejudice the Applicant’s property rights under the Family Law Act as long as her share of the proceeds is not frozen.

Exclusive possession

[13] The Applicant also seeks exclusive possession of the matrimonial home. Exclusive possession and partition and sale are not necessarily mutually exclusive. Exclusive possession can be ordered indefinitely, for a fixed time, or until an event, such as sale of the house, occurs.

[14] Pursuant to s.24(3) of the Family Law Act, the court must consider various factors when determining whether to make an order for exclusive possession. Those factors are:

a. The best interests of the children affected; b. Any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations; c. The financial position of both spouses; d. any written agreement between the parties; and e. Any violence committed by a spouse against the other spouse or the children.

[15] Consideration a. does not apply. There are no remaining dependent children. There is no evidence that would bring considerations b., d. or e into play. Under paragraph c., the financial position of both parties is comparable as far as I know, although the Respondent may have an additional real property. They have comparable incomes, and both have inheritances, the value of which I do not know. The Applicant seems be in financial difficulty but that is because she insists on living in a house that she can no longer afford.

[16] There is no case for exclusive possession. I would warn the Respondent, however, that it is not in his interest not to go to or near the matrimonial home. If he has chattels on the property, he can work out their return through the lawyers. Furthermore, any woman should be entitled to lock her doors against an estranged partner. I think I have jurisdiction to provide for this. I shall allow the Applicant to change the locks as long as she provides a copy of the new key to the real estate agent for the lockbox.

The Respondent’s request for disclosure

[17] The Respondent asked for an order that the Applicant provide evidence of the RESP savings that she cashed. The Respondent is now satisfied that the Applicant has answered that request.

The Applicant’s request for disclosure

[18] Anything requested by the Applicant before June 15, 2020 has already been disclosed. Much of what was requested on June 15 has already been disclosed. The Respondent has not had time to respond to the rest. This motion is at least premature.

Conclusion

[19] I order as follows:

a. the jointly owned property at 5566 Green Avenue, more particularly described as Part Lot 24, Plan 87 Stamford Part 2 59R8812, Niagara Falls shall be listed for sale forthwith. b. Half of the net proceeds of the sale shall be held in trust. The other half shall be paid to the Applicant. c. Until the Applicant vacates the house, she is entitled to change the locks, provided that she give a copy of the key to the real estate agent for the purpose of showing the property to prospective buyers.

[20] The parties may make written submissions to costs not exceeding 3 pages in length, to which a bill of costs and any offers to settle may be appended. The Respondent may do so by June 30, 2020 and the Applicant by July 2.

J.A. Ramsay J. Date: 2020-06-25