Dhaliwal v. Dhaliwal, 2020 ONSC 3971

citation: "Dhaliwal v. Dhaliwal, 2020 ONSC 3971" parties: "Harjit Dhaliwal v. Amandeep Dhaliwal" party_moving: "Amandeep Dhaliwal" party_responding: "Harjit Dhaliwal" court: "Superior Court of Justice" court_abbreviation: "ONSC" jurisdiction: "Ontario" case_type: "motion" date_judgement: "2020-06-26" date_heard: "2020-06-25" applicant:

• "Harjit Dhaliwal" applicant_counsel:
• "Sean Lakhan" respondent:
• "Amandeep Dhaliwal" respondent_counsel:
• "Ruth Kalnitsky Roth" judge:
• "A. Pazaratz" summary: > The respondent father brought a motion seeking the immediate sale of two jointly owned properties, including the matrimonial home where the applicant mother resided with their children, and an investment condominium. The father cited severe financial hardship due to the COVID-19 pandemic, which drastically reduced his income as an optometrist. The mother opposed the sale, arguing no urgency, potential homelessness for the children, and questioning the father's financial claims. The court granted the father's motion, finding that economic necessity required the sale of both properties to alleviate debt and free up equity, and that the mother failed to establish sufficient legal reason or prejudice to prevent the sale. The court emphasized the need for parties to face financial realities, especially during the pandemic, and to move towards an efficient resolution. interesting_citations_summary: > This decision provides a robust application of the Partition Act and Family Law Act principles concerning the sale of jointly owned property in a family law context, particularly under conditions of unforeseen economic hardship like the COVID-19 pandemic. It reaffirms the prima facie right of a joint tenant to an order for partition or sale, placing the onus on the opposing party to demonstrate malicious, vexatious, or oppressive conduct, or unfair prejudice to a legitimate family law claim. The court highlights that temporary orders should not indefinitely perpetuate financial hardship or reward delaying tactics, and that the mere existence of children in a household is not a sufficient basis to oppose a sale without demonstrating a more serious negative impact beyond inevitable adjustments. The ruling underscores the court's role in guiding parties towards efficient resolution in high-conflict, financially wasteful cases. final_judgement: > The court ordered the immediate listing and sale of both the matrimonial home and the investment property. Net proceeds from both sales are to be held in trust pending further order or written agreement between the parties. The parties were also ordered to jointly select listing agents and accept reasonable offers, with provisions for court intervention if disagreements arise. The parties were encouraged to coordinate advising the children about the sale sensitively. winning_degree_applicant: 5 winning_degree_respondent: 1 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2020 decision_number: 3971 file_number: "1387/19" source: "https://www.canlii.org/en/on/onsc/doc/2020/2020onsc3971/2020onsc3971.html" keywords:
• Family Law
• Property Sale
• Matrimonial Home
• Partition Act
• COVID-19
• Financial Hardship
• Joint Tenancy
• Interim Order
• Child's Best Interests
• High Conflict Litigation areas_of_law:
• Family Law
• Property Law
• Civil Procedure cited_cases: legislation:
  • title: "Partition Act, R.S.O. 1990, c. P.4" url: "https://www.ontario.ca/laws/statute/90p04"
  • title: "Family Law Act, R.S.O. 1990, c. F.3" url: "https://www.ontario.ca/laws/statute/90f03"
  • title: "Family Law Rules, O. Reg. 114/99" url: "https://www.ontario.ca/laws/regulation/990114" case_law:
  • title: "McNeil v. McNeil, 2020 ONSC 1225" url: "https://www.minicounsel.ca/scj/2020/1225"
  • title: "Kaphalakos v. Dayal, 2016 ONSC 3559" url: "https://www.minicounsel.ca/odc/2016/3559"
  • title: "Marchese v. Marchese, 2017 ONSC 6815" url: "https://www.minicounsel.ca/scj/2017/6815"
  • title: "Jama v. Basdeo, 2020 ONSC 2922" url: "https://www.minicounsel.ca/scj/2020/2922"
  • title: "Davis v. Davis" url: "https://www.canlii.org/en/on/onca/doc/1953/1953canlii148/1953canlii148.html"
  • title: "Brienza v. Brienza, 2014 ONSC 6942" url: "https://www.minicounsel.ca/scj/2014/6942"
  • title: "Steele v. Doucett, 2020 ONSC 3386" url: "https://www.minicounsel.ca/scj/2020/3386"
  • title: "Afolabi v. Fala, 2014 ONSC 1713" url: "https://www.canlii.org/en/on/onsc/doc/2014/2014onsc1713/2014onsc1713.html"
  • title: "Silva v. Silva (1990)" url: "https://www.canlii.org/en/on/onca/doc/1990/1990canlii6718/1990canlii6718.html"
  • title: "Maskewycz v. Maskewycz (1973)" url: "https://www.canlii.org/en/on/onca/doc/1973/1973canlii603/1973canlii603.html"
  • title: "Parent v. Laroche, 2020 ONSC 703" url: "https://www.minicounsel.ca/scj/2020/703"
  • title: "Latcham v. Latcham (2002)" url: "https://www.minicounsel.ca/oca/2002/44960"
  • title: "Dulku v. Dulku, 2016 ONSC 6400" url: "https://www.canlii.org/en/on/onsc/doc/2016/2016onsc6400/2016onsc6400.html"
  • title: "Zargar v. Zarrabian, 2016 ONSC 2900" url: "https://www.minicounsel.ca/scj/2016/2900"
  • title: "Giglio v. Giglio, 2015 ONSC 8039" url: "https://www.minicounsel.ca/scj/2015/8039"
  • title: "Keyes v. Keyes, 2015 ONSC 1660" url: "https://www.minicounsel.ca/scj/2015/1660"
  • title: "Delongte v. Delongte, 2019 ONSC 6954" url: "https://www.minicounsel.ca/scj/2019/6954"
  • title: "Kaing v. Shaw, 2017 ONSC 3050" url: "https://www.minicounsel.ca/scj/2017/3050"
  • title: "Fernandes v. Darrigo, 2018 ONSC 1039" url: "https://www.minicounsel.ca/odc/2018/1039"
  • title: "Kereluk v. Kereluk, 2004) had experienced some personal issue which delayed a response. h. The mother ultimately filed responding materials and the father filed a reply. i. In their materials, each party expressed concern that the court might draw an inappropriate negative inference in relation to the aforementioned confusion where documents were served but not responded to. j. On this topic, the parties need not worry. It sounds like there were some extenuating circumstances. There was no mischief. I will have no difficulty focusing on the merits of the motion.

8Pursuant to the protocols during reduced Court operations, all of the materials in this matter were filed electronically through the applicable Courthouse email address. Upon the resumption of Court operations all materials shall be duly filed by the parties in the physical record at the courthouse.

[9] I reviewed the following materials: a. May 19, 2020 Respondent’s affidavit b. June 2, 2020 Respondent’s Notice of Motion c. June 16, 2020 Respondent’s Notice of Motion d. June 16, 2020 Respondent’s affidavit e. June 23, 2020 Applicant’s affidavit f. June 24, 2020 Respondent’s affidavit

[10] The Respondent’s two Notices of Motion are basically duplicates and include claims for the following: a. Dispensing with the Applicant’s consent to secure mortgage deferral in relation to two jointly owned properties: The matrimonial home in Stoney Creek, and also a Toronto condominium which is an investment property. b. Immediate sale of both properties. c. A formula for selecting real estate agents in relation to both properties. d. A requirement that the parties not refuse any reasonable offers in relation to both properties. e. Net proceeds of sale to be held in trust. f. Costs.

11The Applicant did not bring a cross-motion. She simply asks that all of the Respondent’s claims be dismissed, with costs against him.

[12]

Background

Before I review the disputed information, fortunately there appears to be agreement about some important numbers. a. The equity in the matrimonial home is about $1,000,000.00. The Respondent thinks the property is worth about $1,500,000.00. The Applicant thinks the fair market value is a bit less, but she also believes the encumbrances are a bit less than the Respondent estimates. Either way, the amount of equity is not in dispute. b. Similarly, the parties agree that the Toronto investment property has a fair market value of approximately $700,000.00 and that the equity is approximately $360,000.00.

[13]

The Respondent's Position

The Respondent’s first two affidavits are also largely duplicates and include the following basic narrative: a. Since the parties separated on April 28, 2019 the Applicant mother and the two children have been residing in the matrimonial home which still has a significant mortgage. The Toronto condominium is tenant occupied and hardly covers the carrying costs. b. The parties had a Case Conference on December 17, 2020. c. At a February 21, 2020 court attendance, the parties scheduled a long motion on access and support issues to be heard during the March 30, 2020 sittings. d. Also on February 21, 2020, the parties and counsel had a four-way meeting and signed a temporary without prejudice agreement pending hearing of the long motion: Commencing March 1, 2020 the Respondent would pay $2,077.00 per month in child support, and $2,451.00 per month in spousal support. The Applicant would pay half of the mortgage and property insurance in relation to the matrimonial home. The parties would attend mediation, with the Respondent to advance the cost of mediation, subject to later reapportionment. There were additional terms in relation to the Respondent’s access and his obligation to maintain $1,000,000.00 of life insurance. e. But then in March 2020 the COVID-19 pandemic changed everything. f. The suspension of court operations meant that the long motion did not proceed as scheduled. That motion has been adjourned indefinitely. Final resolution of their family law issues is now on hold. g. In the meantime, the Respondent says COVID-19 has drastically and unexpectedly decreased his income. h. The Respondent is an optometrist with two office locations in Hamilton. Between 2016 and 2019 his annual personal income averaged $132,000.00. The February 21, 2020 temporary support agreement was predicated upon the Respondent continuing to have a similar income. i. However, the COVID-19 pandemic forced him to shut down both of his practices in March 2020. The College of Optometrists of Ontario has restricted patient care except for urgent matters, which he will soon be resuming. j. As a result, the Respondent’s income has been drastically and indefinitely reduced. He estimates his total 2020 earnings will be about $66,000.00. k. The Respondent has been solely responsible for carrying costs in relation to the matrimonial home for more than a year. Even when he was working full time the Respondent could not afford these expenses. l. Now, with his greatly reduced income, he can’t afford to pay the mortgage and carrying costs in relation to the matrimonial home. And he can’t afford to pay the child and spousal support set out in the without prejudice agreement. Each party paid what they were supposed to in March (the Applicant received support and paid $931.00 as her half of the mortgage). But neither party has adhered to the temporary agreement since then. m. The Respondent currently receives $2,000.00 per month in benefits. This payment is directly deposited into the account from which mortgage payments are automatically withdrawn. With his reduced income he is left with $200.00 per month to survive. n. The Respondent says in addition to paying all expenses in relation to the matrimonial home, he also makes the monthly payment in relation to the joint line of credit. Those monthly expenses total $4,830.67. o. Property taxes are now in arrears. p. The Respondent has attempted to obtain a deferral of mortgage payments, which Scotiabank is prepared to consider pursuant to a COVID-19 hardship program. However, the Applicant has refused to agree to a deferral of mortgage payments. She says she is afraid of the impact such a request might have on her credit rating. (The Respondent acknowledges he was wrong to initially seek a mortgage deferral without the Applicant’s participation – but even after she learned of his proposal, she rejected it.) q. The Respondent says the parties cannot afford the carrying costs in relation to either of the two properties. Even though the Toronto condo is roughly breaking even, they need to access any equity in the investment property to alleviate their dire financial circumstances. He says if they are to avoid financial ruin, the parties need to sell both properties immediately. He acknowledges the real estate market is in flux. But he suggests that listing both properties immediately will increase the likelihood of at least one property selling quickly, to alleviate pressing financial needs. He says they can’t afford to delay in the hope that eventually the real estate market may improve. r. The Respondent says he has attempted to negotiate these issues with the Applicant but without success. She refuses any suggestion he makes. But she also refuses to come up with her own solutions. He says his financial problems have been exacerbated by unnecessary legal fees resulting from the Applicant’s refusal to negotiate in good faith. s. The Respondent notes that the Applicant is unemployed and refuses to contribute financially. He says prior to separation the Applicant was let go from her $102,000.00 salaried employment “under questionable circumstances”. He suggests she could be doing more to help ease the family’s financial difficulties, but instead she says she is pursuing a post-graduate degree. He notes that even though she is home full-time, the Applicant recently sponsored a full-time nanny (her third since separation). He says she is taking an unrealistic and unhelpful approach with respect to the family’s finances. She only pays for utilities, groceries and the nanny. t. The Respondent also says the Applicant refuses to allow him access to his personal belongings in the matrimonial home. u. The Respondent proposes that if they can’t agree on selection of a real estate agent, the Applicant can suggest any three names and he will pick one of them. v. He anticipates the Applicant will resist selling either property. He wants a court order specifying that the parties cannot decline a reasonable offer. He suggests any offer within four per cent of the listing price would be reasonable. w. He is content that net proceeds be held in trust.

[14]

The Applicant's Position

The Applicant mother’s June 23, 2020 affidavit included the following information and allegations: a. The children have resided with her since the date of separation. She is their primary caregiver. b. The parties have been engaged in protracted litigation concerning custody, parenting time and equalization since 2019. c. The Respondent has not fulfilled his child and spousal support obligations pursuant to the agreement signed February 21, 2020. He only paid support for the month of March 2020. d. The Respondent should not be permitted to seek further assistance from the court until he complies with the agreement. e. The father is taking an aggressive approach to litigation which is inconsistent with the best interests of the children. f. The Applicant has acted reasonably in refusing to agree to defer mortgage payments, and in refusing to agree to list the two properties for sale. g. The Respondent’s initial attempt to defer mortgage payments without the Applicant’s knowledge is indicative of his refusal to communicate and negotiate fairly. h. As a result of the Respondent’s actions, the mortgage on the jointly owned condo was auto-renewed at a higher interest rate. If the Respondent was really concerned about finances, he would not have allowed this to happen. i. The Respondent’s aggressive approach to litigation is driving up legal fees. This is inconsistent with his claim that he is impecunious. j. The Respondent has not considered the impact on the children if the matrimonial home is sold. The Applicant and the children will be homeless. This is not reasonable. This children’s situation must be considered. k. There is no urgency to sell the properties. The Respondent is simply seeking to exert undue pressure on the Applicant, to gain strategic advantage. l. The Respondent has not provided financial corroboration that he is financially destitute. m. While the Respondent claims COVID-19 has resulted in a reduction in his income, he makes no reference to his personal savings, investments or other sources of income from which he could meet his financial obligations. n. In any event, COVID-19 restrictions are now being reduced, so any reduction in his business income should soon be resolved. The Respondent “chose to keep the offices closed until the week of June 22, 2020.” o. The Respondent could have applied for government financial assistance to help small businesses and employees during COVID-19, but he elected not to pursue these options. p. The Respondent is taking a scorch-earth litigation strategy, seeking to sell properties when the real estate market is depressed. This is financially irresponsible and not child-focussed or settlement oriented. q. The Respondent currently lives with his parents. r. The Applicant asks that the Respondent’s motions be dismissed.

[15]

The Respondent's Reply

The Respondent’s reply affidavit of June 24, 2020 included the following information and allegations: a. He denies taking an aggressive or “scorched earth” approach to litigation. He insists he had made countless efforts to resolve issues amicably, and the Applicant has remained unresponsive or hostile. b. He denies being responsible for increased or unnecessary legal fees. He says the Applicant has been quite aggressive in requesting disclosure, which the Respondent has provided. In contrast, the Applicant has not provided disclosure requested of her. c. He was previously forced to bring a motion for access to his children because the Applicant refused to negotiate a reasonable schedule. The Applicant brought a cross motion on support and property issues, fully aware that she was escalating the dispute into a long motion. d. The Respondent signed the February 21, 2020 temporary agreement in good faith, but the Applicant immediately reneged on the agreement by refusing to attend mediation. e. The Respondent paid what he was supposed to pursuant to the temporary agreement until the COVID-19 pandemic unexpectedly arose and “eradicated” his income. f. The Applicant is being selective in claiming that the best interests of the children are her priority. Her continuing interference with the Respondent’s relationship with the children demonstrates that she is not focussed on their best interests. g. After the Applicant changed counsel, her new counsel was unresponsive to communications, and the Respondent has not been able to negotiate with the Applicant directly. h. When COVID-19 emerged, the Respondent had no option other than to shut down his two business locations which are in shopping malls. While he has only recently been able to resume operations, business is slow. i. The mortgage on the investment property was “auto-renewed” because the Applicant refused to communicate with the Respondent, so no alternate mortgage arrangements were made. The Respondent would have preferred to get a lower mortgage rate, but nothing could be done without the Applicant’s cooperation. j. He denies being oblivious to the children’s need for housing. But the reality is that neither party can afford the matrimonial home, so it must be sold. The equity from the home and the investment property can be applied to allow both parties to rent or buy alternate, more affordable housing. In any event, the children would be unaffected by a sale of the investment property. k. The Respondent denies that he has savings which he could draw upon to pay all the amounts the Applicant wants him to pay. He says he was financially strained even before the COVID-19 pandemic. He has depleted any savings.

[16]

Legal Principles

The applicable legal principles include the following: a. Section 2 of the Partition Act empowers the court to order the sale of a jointly owned property, including a matrimonial home. McNeil v. McNeil, 2020 ONSC 1225 (SCJ). b. A joint tenant has a prima facie right to an order for the partition or sale of property held with another joint tenant. Kaphalakos v. Dayal, 2016 ONSC 3559 (SCJ); Marchese v. Marchese, 2017 ONSC 6815 (SCJ); Jama v. Basdeo, 2020 ONSC 2922 (SCJ); Davis v. Davis; Brienza v. Brienza, 2014 ONSC 6942 (SCJ). c. A court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made. Jama v. Basdeo; Steele v. Doucett, 2020 ONSC 3386 (SCJ). d. The other joint tenant has a corresponding obligation to permit the sale. These are fundamental rights flowing from joint tenancy. Steele v. Doucett. e. The onus is on the party who opposes a sale to establish that there is a sufficient reason, recognized in law, why the court should exercise its discretion to refuse a sale. Afolabi v. Fala, 2014 ONSC 1713 (SCJ). f. Generally, the party opposing the sale must show malicious, vexatious or oppressive conduct relating to the partition and sale issue in order to avoid the sale. Silva v. Silva (1990), 1 O.R. (3D) 436 (ON CA); Jama v. Basdeo; Steele v. Doucett. g. Each case must be considered on its own facts. The court must consider all relevant factors in exercising its discretion. Davis v. Davis, [1954] O.R. 23 (C.A.); Steele v. Doucett. h. In family law cases, an order under the Partition Act should generally not be made until any dispute related to the property has first been determined. Maskewycz v. Maskewycz (1973), 2 O.R. (2d) 713 (ON CA). i. The Family Law Act does not displace the Partition Act. But in family cases a partition application should generally not be granted where it can be shown that a legitimate family law claim would be unfairly prejudiced. Silva v. Silva; Parent v. Laroche, 2020 ONSC 703 (SCJ); Latcham v. Latcham (2002), 27 R.F.L. (5th) 358 (ON CA); Dulku v. Dulku, 2016 ONSC 6400 (SCJ). j. In assessing and guarding against potential prejudice, the court must take a realistic view of the potential impacts of a sale – both positive and negative – in relation to the interests of both joint tenants, and the family as a whole. Where the financial or other circumstances of the parties are such that a sale would be the inevitable result at trial, there is little justification for delaying the sale. Zargar v. Zarrabian, 2016 ONSC 2900 (SCJ); Giglio v. Giglio, 2015 ONSC 8039 (SCJ); Keyes v. Keyes, 2015 ONSC 1660 (SCJ). k. More to the point, where it is evident at the temporary motion stage that monthly carrying costs are currently unsustainable, it is inappropriate to indefinitely perpetuate financial hardship for the entire family. Quite commonly, house expenses which were barely affordable when the family unit was intact immediately become unaffordable once the same income has to fund two separate households. Sometimes harsh new realities need to be faced sooner as opposed to later – in order to avoid even more painful consequences such as power of sale proceedings or even bankruptcy. l. The court must consider the impact of a proposed sale on children or a vulnerable spouse -- including the emotional impact, and the fundamental need to ensure that they have appropriate housing. Delongte v. Delongte, 2019 ONSC 6954 (SCJ); Kaing v. Shaw, 2017 ONSC 3050 (SCJ). The availability and affordability of alternate housing must be considered. As part of the analysis, support obligations may need to be co-ordinated – even on a temporary basis – to ensure that any party displaced by a sale will have the resources to arrange reasonable replacement accommodation. m. Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course. Fernandes v. Darrigo, 2018 ONSC 1039 (SCJ). The court must be mindful of the whole of the proceeding, and the need to achieve a final resolution for the family as fairly and expeditiously as possible. [Kereluk v. Kereluk, 2004) (SCJ). n. Timing can be a relevant consideration in dealing with a motion for sale at a temporary stage. The availability of a trial within a short period might reduce the pressure for an immediate sale. Goldman v. Kudeyla, 2011 ONSC 2718 (SCJ). o. On the other hand, a request for sale during summer months may entail some timeliness if seasonal market opportunities are favourable; or to reduce the likelihood of a child having to change residence (and possibly catchment area) while a school year is in session. p. The stage of a child’s academic progress might also be relevant. Sale might be delayed if it would allow a child to complete a certain grade level before an inevitable switch to another school. On the other hand, immediate sale might be more appropriate if the child happens to be transitioning to a new school in any event. q. But the mere existence of children in a household is not in itself a sufficient basis to oppose a sale. A generic statement that children enjoy living in their current house or that they will be unhappy if they have to move, is not sufficient. The party opposing a sale must establish a likely negative impact more serious than the inevitable adjustments and disruptions which all families face when parents decide to separate. r. A pending equalization claim may also be relevant. The court cannot compel one joint tenant to sell to the other. Martin v. Martin. Nor can it give either joint tenant a right of first refusal. Dibattista v. Menecola. But a recipient of an equalization payment may propose to set that entitlement off against their former spouse’s share of the equity in the home. If a sufficiently particularized proposal seems viable -- and especially if it would benefit a child -- sale should be delayed to allow proper consideration of that option. Chaudry v. Chaudry, 2012 ONSC 2149 (SCJ). s. The court must consider and attempt to guard against potential prejudice. Are there realistic issues or claims yet to be determined on a final basis, which would be prejudiced or precluded if a property is ordered to be sold at the temporary stage?

[17]

Analysis

These temporary sale motions are never easy -- and unfortunately COVID-19 has made just about everything in family court a whole lot harder. a. Both parties complain of extreme financial hardship. b. In other circumstances the court might have been more receptive to allegations of hidden income, under-employment, or self-created financial strain. c. But COVID-19 has unexpectedly and unavoidably created a profound and indefinite financial crisis for this family. d. The pandemic has particularly devastated the income capacity of the Respondent who is currently the only breadwinner for this family of four. e. I accept his evidence that as an optometrist his two rented shopping mall locations were forced to shut down in March 2020, when the COVID-19 restrictions were rapidly imposed by all levels of government (and by his governing professional body). I accept his evidence that while he has just recently started to reopen his business, it will be a gradual process with restrictions as to the number of clients he can see. His future operations and income levels are uncertain. The Applicant has provided no reason to doubt the Respondent’s estimate that his income for 2020 will be perhaps half what it was in previous years – around $66,000.00. f. I understand that there is no trust between these parties, and the Applicant is quite correct to require additional and ongoing disclosure as to the Respondent’s current (and continuously-evolving) finances. g. In pre-COVID-19 times, “disclosure” was our mantra, and judges were reluctant to impose any financial decision until every reasonable inquiry had been fully addressed. h. But this pandemic has created such immediate financial crisis for so many individuals and businesses, that it would be unrealistic and inhumane not to understand that people are really hurting – and they need help now. i. The Applicant speculates that the Respondent’s finances may not be as bad as he says, and that he may have other funds or savings available. The Respondent denies this, and the Applicant has offered no specifics or proof. I find that there is no evidence to support the Applicant’s very general speculation. If subsequent investigation reveals additional funds, we can deal with that later. But for the moment we’re going to have to give people the benefit of the doubt when they tell us how badly COVID-19 has ruined their lives. j. And this cuts both ways. The Respondent alleges that the Applicant is deliberately under-employed and she should go out and get a job rather than continue to upgrade her education. In normal times judges might take judicial notice of employment or re-entry opportunities, even in the context of temporary orders. But with the marketplace being decimated by the pandemic, I suspect that – for at least the next few months -- we will be seeing far fewer cases of income being imputed in this type of situation. k. COVID-19 has at least temporarily ruined the financial prospects of both of these parties. And neither of them is to blame.

[18] Which leads us to where most of these cases are going to have to go: Reality. a. The parties simply don’t have enough money. And family court can’t print money for them. b. At the best of times – even when the Respondent was working and the parties were together – their financial situation was barely sustainable. c. Now -- with less money divided between two households – the only real mystery is why these parties are spending their few remaining dollars paying lawyers to debate the inevitable.

[19] Both parties advance compelling arguments. These are important issues, and I have attempted to be particularly mindful of the impact of all of this on the children. a. I accept without hesitation that the two children like living in their current home. b. I presume that like most children they will be unhappy if they have to move. c. (Given the high conflict nature of this file, I also presume the children are no strangers to unhappiness – and that’s something these parents can’t blame on COVID-19.) d. But there is no evidence that these children or this mother have particular vulnerabilities or circumstances which require that this particular home be maintained. e. The mother complains that if the matrimonial home has to be sold, the children will be homeless. But she doesn’t address the possibility of arranging replacement accommodation. She offers no evidence to suggest that this would be difficult. Or that she has even looked into it. f. The father’s position is more consistent with common sense. g. While these parties may no longer be able to afford this particular expensive home, sale of the two properties would free up at least $1.3 million dollars of joint funds, after clearing their debts. h. Presumptively each party is entitled to approximately $650,000.00. i. Neither party has quantified any potential equalization payment owing by one to the other. Even if there was a small mutual holdback to secure future obligations, each of these parties could still be allowed to apply perhaps $500,000.00 as a down payment toward more affordable accommodation. j. And not to be forgotten: this is still very much an unresolved custody dispute. Both parents are urging the court to place the children in their care for significant periods of time. Both parents should be given an opportunity to establish and maintain a reasonable – and roughly equivalent -- home environment for the children while in their care. k. Requiring separated parents to face reality and downsize is hardly “leaving the children homeless.”

[20] I accept that each of these parties feels the other is acting unreasonably and in bad faith. a. The mother seeks to elevate her complaint by alleging that the father’s misconduct rises to the level of “malicious, vexatious or oppressive”, as discussed in the relevant caselaw. b. I wouldn’t go that far. c. I find that both of these parties are frightened, angry and stubborn. That’s not enough to either force a sale or block a sale. d. They are both acting so strategically and aggressively that they have lost sight of the harm they are doing to their children and to their bank accounts. e. And they definitely don’t seem to understand that in this COVID-19 economy, financially wasteful litigation is an indulgence they can no longer afford.

[21] This is not the first time I have urged these parties to be more sensible. Following a very heated appearance before me at a motion on February 21, 2020 I declined to award either party costs. My endorsement included the following at paragraph 7: “I am not inclined to determine costs today, primarily because I am very concerned that this is turning into a nasty, high conflict file, and I want to convey to both parties the court’s concern that we don’t like what we are seeing, and we don’t want to encourage more aggressive litigation with a costs order.”

22Four months later, they haven’t learned a thing.

[23] The Applicant mother’s position on some of today’s issues is somewhat perplexing. a. If Scotiabank was willing to offer a temporary deferral of mortgage payments during COVID-19, I would have thought the Applicant would have quickly embraced that option, perhaps with some element of appreciation. Her expressed worry about jeopardizing her credit rating seems misguided, given the very real danger of losing her home. b. Similarly, the Applicant’s resistance to selling even the investment property – which would have no impact on the children – appears to be arbitrary and simply oppositional. She says she’s concerned this is a bad time to sell because the market is depressed. Perhaps that’s true. But nobody knows if or when the real estate market will go up… or down farther. Neither joint tenant has the right to impose their hunch about the market on the other. c. The Applicant gives the impression that she just won’t agree to anything -- not a mortgage deferral; not a sale; not mediation – because she happens to like things the way they are and she doesn’t want anything to change. That type of attitude – by a parent enjoying a favourable status quo -- helps explain why these parties are more than a year past separation, with no sign of settling anything. d. Most of the case law on this topic focusses on the need to guard against prejudice being created by a sale order. But sometimes a sale order can create a much-needed impetus for the parties to move forward; and to overcome intransigent and stalling behaviour. e. Reducing the number of issues for high conflict parents to argue about…now that’s in the best interests of children.

[24] I find that the Applicant has not established any reason why either of the properties should not be sold. To the contrary, the Respondent has clearly established that economic necessity requires that both properties be sold, to alleviate a crippling debt load, and to free up significant available equity so that these parties can both get on with their lives. a. The Respondent’s request displays no element of being “malicious, vexatious or oppressive.” b. Of more relevance in the family law context, the Applicant has not established that a sale of the properties would result in any prejudice with respect to any outstanding claims she still wishes to pursue. c. “Prejudice” must entail more than just losing the right to say “Let’s not do anything right now because I want to keep all my options open.” d. The Applicant speaks in generalities: Maybe the Respondent has more money. Maybe COVID-19 will go away and the Respondent will earn his former income again. Maybe this. Maybe that. e. But she offers no solution to the immediate, pressing financial problems. f. And she identifies no long-term claim on a final basis which she could not fully pursue even if these properties were sold, and if the parties (and the children) inevitably settled into two new households. g. Sale of the matrimonial home is necessary in the short term, and inevitable in the long term. h. Accelerating the determination of each parent’s eventual residence (and budget) will ultimately assist the court in determining remaining issues such as parenting and support.

25There should never have been any debate about whether the investment property should be sold.

[26] The issues in relation to the matrimonial home are more complex, but ultimately I find that this property should also be sold immediately. a. I had considered deferring sale of the home while ordering the parties to pursue a mortgage deferral. But the availability, duration and implications of this option are uncertain. b. Even a brief respite from monthly mortgage payments would only be a stop-gap solution. The Respondent’s income is still likely to remain reduced and unpredictable for an an extended period of time. c. There would still be a lot of equity being needlessly and unfairly monopolized by one party, with significant implications with respect to parenting and support issues. d. And motions’ judges need to be alive to the reality of high conflict, ponderous files. These parties are nowhere near being trial ready. At the current unproductive pace, temporary orders are likely to remain in place for an extended period. So we need to make sure temporary orders don’t encourage or reward complacency and delaying tactics. e. These children (and the children of all taxpayers) have an interest in these parties being guided toward an efficient resolution of this financially wasteful case.

[27]

Temporary Order

Temporary order: a. The matrimonial home at (address withheld) and the investment property at (address withheld) shall be listed for sale forthwith. [I have not identified the addresses in this publicly available endorsement, to avoid revealing confidential information about the parties as vendors, which could be exploited by potential purchasers. The addresses are to be set out in the court order.] [Note: comments set out in square brackets are explanatory for the benefit of the parties, and are not to be included in the order when it is issued.] b. Both parties shall do all things necessary to facilitate marketing of both properties, immediately and diligently. c. The parties shall jointly select a listing agent for each property within seven days. If there is any disagreement as to the selection of the listing agent or the listing price, the parties may return the issue to me on three days’ notice. [The Respondent anticipated that even if the court ordered a sale, the Applicant would drag her feet because she doesn’t really want either property sold. I have declined the Respondent’s suggestion that the Applicant propose three listing agents and the Respondent would then select one of them. Speaking plainly, if the Applicant was inclined to frustrate my order (which I do not presume) the Applicant could simply select three uninspired agents, and the Respondent would be stuck with one of them. I prefer the honour system. I have made the decision that both properties are to be sold. I have set out my expectations quite clearly. If there is any delay or frustration of my order, I will take decisive action when the matter returns to me. The worst case scenario for the Applicant would be that she loses any control over the process of sale, and she would be exposed to a significant costs order if the Respondent has to keep returning to enforce this order. I’m going to presume that everyone understands the court will not tolerate any mischief or frustration of this order.] d. The parties shall accept any reasonable offer in relation to each property. [I have declined to include the Respondent’s proposal that the parties be mandated to accept an offer within four per cent of the listing price, because as above, I don’t want to reveal any information which might give potential purchasers a strategic advantage.] e. Pending sale of the matrimonial home the parties shall forthwith take all steps available to attempt to secure a deferral of mortgage payments from the bank. But the result of this inquiry shall not change the aforementioned determination that both properties are to be sold immediately. f. The net proceeds of sale from each property shall be held in trust pending further order or written agreement between the parties. This is without prejudice to the partial or complete distribution of the net proceeds being further addressed, once the parties have better information about any sale; any proposed purchase of another residence; and any potential other obligations which might justify a hold-back of funds. g. The parties should jointly determine when the children will be advised that the house will be listed for sale. This announcement should be co-ordinated and conveyed in a sensitive manner, without attributing blame or responsibility to anyone. The children should be assured that each parent will be arranging a suitable and favourable residence. Any fears or anxieties expressed by the children should be addressed in a sensitive, co-ordinated and reassuring manner. [To the parties, this is an important test. Your ability and inclination to put a positive spin on things for the sake of the children will be an important indicator of your parental insight.] h. If any issues (other than costs) need to be addressed – including listing arrangements – counsel should arrange a videoconference before me by Zoom. If such an attendance is scheduled, counsel should be prepared to deal with any costs submissions at the same time. i. If only costs need to be addressed, the parties are to serve and file written submissions on the following deadline:

1. Respondent’s materials (not more than four pages including a bill of costs) by July 17, 2020.
2. Applicant’s materials (not more than four pages including a bill of costs) by July 27, 2020.
3. Any reply by Applicant (not more than one page) by August 4, 2020. j. The parties have identified that there may be further motions for temporary relief in relation to parenting and support. Given my familiarity with this file, any such motions should be returned to my attention.

28Notwithstanding rule 25 of the Family Law Rules, this endorsement is effective from the date it was made and enforceable as an order of the court without the need for an order to be prepared or approved by the parties and then issued by the court. No formal order is necessary unless an appeal or a motion for leave is brought, or alternatively unless one is necessary for enforcement by a third party. A party who wishes to prepare a formal order for approval and issuance may do so, and submit materials by Form 14B to the court.

Pazaratz J.