COURT FILE NO.: FS-16-00311

DATE: 2020 08 20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

SAPNA KAPOOR

Applicant

• and -

PUNEET DHAWAN

Respondent

Todd C. Hein, for the Applicant

Harpreet Singh Makkar, for the Respondent

HEARD: July 31, 2020 via Zoom video and telephone conference

REASONS FOR JUDGMENT

Fowler Byrne J.

1The Respondent Father Puneet Dhawan (“the Father”) has brought this motion seeking an order for the immediate sale of the matrimonial home and other related relief.

2While no Notice of Motion was served, in her responding materials, the Applicant Mother Sapna Kapoor (“the Mother”) seeks a dismissal of the Father’s motion and an order that the Father sign all necessary forms to renew their mortgage, or that his signature be dispensed with.

Background

3The Father and the Mother married on October 29, 1999 and separated on July 9, 2015. There is one child of the marriage, Param, who was born on July 30, 2001. The parties agree that Param suffers from autism and an intellectual disability and that he exhibits aggressive and sexualizing behaviour.

4The matrimonial home at issue is located at 23 Blue Oak Avenue in Brampton, Ontario (“the Matrimonial Home”). It was purchased on October 31, 2014, and the parties took title as joint tenants. It is a four-bedroom home with two additional bedrooms in the basement that are being rented. As of June 27, 2020, the Matrimonial Home was appraised at $963,000. The mortgage has an approximate balance of $286,000. It is the most significant asset of the marriage.

5It is agreed that from the date of separation until December 2016, the parties both remained in the Matrimonial Home, albeit separated. The Father left the Matrimonial Home in December 2016, claiming the Mother threatened to have him criminally charged with assault if he returned.

6On February 6, 2017, an order was made prior to the Father filing his materials. It states:

Until a motion is heard or an agreement is made, on a without prejudice basis, the Applicant [Mother] will have exclusive possession of the Matrimonial Home and the Respondent [Father] will keep the bills in good standing.

7The parties disagree on who has paid the expenses related to the Matrimonial Home from the date of their separation. In addition to the order of February 6, 2017, an order was made on February 20, 2018, wherein the Father was ordered to pay all day to day expenses associated with the Matrimonial Home, including the mortgage, property taxes, insurance, hydro, Enbridge, water, internet and phone as of March 1, 2018. He claims he has complied with this order. It is agreed that as of June 2018, the Mother alone has paid the carrying costs of the Matrimonial Home.

8It is also agreed that the two basement apartments are rented, but the parties disagree on the consistency of the rental income that the Mother has received.

9The Father brought a motion for the sale of the Matrimonial Home in February 2018, a little more than a year after he left. The Mother brought a counter-motion seeking child and spousal support and consent to travel. In her motion materials served in February 2018, the Mother swore an affidavit that stated:

I seek exclusive possession of the matrimonial home until Nov 2019 when the mortgage will come up for renewal or sooner if the Respondent provides full and fair financial disclosure. This will give me enough time to make arrangements to qualify for the mortgage on my own or with my family’s assistance and buy out the Respondents share of the home.

10The Father claims all financial disclosure was provided by May 2019.

11Both motions in February 2018 were resolved by way of a consent order. This order provided that the Father was to pay the ongoing expenses associated with the Matrimonial Home, as stated above, and his child support and spousal support obligations were set. The order also stated, on a final basis, that “[t]he Respondent [Father] foregoes his claim for occupation rent.” The Father claims he waived his right to occupation rent because of the Mother’s stated intention to finalize the issue of the Matrimonial Home before the mortgage had to be renewed. The necessity of refinancing, or the target date of November 2019 is not addressed in the order of that day. The Mother denies that this agreement was made. She maintains that the Father’s counsel was made aware that until she had an opportunity to build a credit history, she could not commit to a day on which she could purchase the Father’s interest in the Matrimonial Home. This is not entirely consistent with her sworn evidence from 2018.

12In September 2019, the Father suggested that the Matrimonial Home be listed in March 2020, to ensure that Param could finish his school year. In return he would cooperate in the re-financing of the Matrimonial Home and wanted the divorce severed from the corollary issues. This suggestion was ignored.

13A settlement conference took place on June 16, 2020 before Price J. At the settlement conference, a further order was made, on consent. It provided that the Mother would make a written proposal to buy the Father’s interest in the Matrimonial Home by June 30, 2020, and the Respondent would respond by July 7, 2020. If they were unable to reach an agreement, the Father was granted leave to bring this motion, and a timetable was set. The Mother was also given leave to bring an urgent motion seeking an order that the Father cooperate on the refinancing or remortgage of the Matrimonial Home. The parties have been unable to negotiate a buyout agreement because the parties disagree on a number of adjustments, the most significant being the amount of a lump sum spousal payment that is due to the Mother.

14In summary, the Father maintains that he has been trying to obtain his equity from the Matrimonial Home for approximately five years. He has been patient and has given the Mother numerous opportunities to purchase his interest. The Mother argues that an order for the sale is premature and that there are many interrelated issues to be tried. These other issues could “potentially assist” her in buying out the Respondent’s share of the matrimonial home.”

15A trial management conference has been scheduled for September 15, 2020. There is no date set for the trial.

Circumstances of the Child

16It does not appear contested that due to Param’s special needs, he remains a child of the marriage. The Mother argues that due to Param’s special needs, it is in his best interests to remain in the Matrimonial Home until he graduates from high school in June of 2022 at the age of 21. The Mother advises that if the trial is heard before that date, she will be seeking an order that the sale of the Matrimonial Home be delayed until Param graduates high school.

17Param has just turned 19 years old. He attends Louise Arbour Secondary School in a specialized programme for disabled children. He is also part of a satellite programme called the Secondary District Disability Resource Programme (“DDR”), which offers part time integration with regular students. He started this programme in September 2019. This satellite programme is only offered in select school districts, although no information was given as to what other districts it was offered.

18The following evidence was offered to describe Param’s special needs:

a) Individualized Education Plan (“IEP”), dated March 3, 2020; this document indicates that Param has been diagnosed with Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder and moderate “ID” or Intellectual Disability;

b) A letter from Dr. Christine Skowron, a psychologist at Param’s school, dated March 4, 2020, that indicates the Param had difficulty adjusting to the DDR programme and to staffing and scheduling changes. He has exhibited more aggressive behaviours recently, and they seem triggered by words such as “good” or “great”. The psychologist suggested that a health condition may be underlying these behaviours and suggested medical intervention;

c) A letter from the Brampton Caledon Community Living programme, dated October 1, 2019, which identifies Param as having a diagnosis of autism. The author of the letter, Service Coordinator Rob Brownlee, states as follows:

As Param has a diagnosis of Autism, it is important that he has routine and structure. Studies indicate that many individuals with Autism benefit from a stable, consistent environment and any disruptions or changes to this stability could be detrimental to their ability to cope.

Param will remain in high school until he is 21 years old and this will greatly assist with maintaining structure and predictability for Param.

d) A letter from the Peel District School Board, dated June 10, 2020, setting out Param’s admission into the Transition Program, which indicates that the placement will not be immediately available if Param relocates to another area within the jurisdiction of the Peel District School Board;

e) A letter from Dr. Umesh Rayar, Param’s treating behaviour therapist from 2007 to 2019, dated May 1, 2019, which indicates that Param has autism spectrum disorder, developmental delay and exhibits aggressive and sexualizing behavior. He has recorded instances of violence by Param as against his mother;

f) A letter from ErinoakKids School Based Rehab Services Team, dated July 1, 2020, which indicates that as of July 1, 2020, their therapists will be providing physiotherapy, occupational therapy and/or speech therapy through their school-based rehabilitation services. Param will be a beneficiary of these services; and

g) The Mother has also provided affidavit evidence of the numerous medication Param takes on a daily basis;

19The Mother states that Param has just finished the first year of a three-year programme through his high school. The goal is to help the students develop skills before they must graduate at age 21. The Mother hopes that when Param is 21 years old, he will transition to an adult day programme.

20The Mother argues that it is in Param’s best interests to remain in the Matrimonial Home, in particular, because of his familiarity with the space (in that he has his usual places to calm himself), the specific modifications that have been made to the home for Param’s safety, the large size of the home to accommodate his pacing, and the fact that they are surrounded by neighbours who know Param well and are understanding of his special needs.

21Also, the Matrimonial Home is in the catchment area of his high school, which has set up a comprehensive programme to assist Param in the last years for which he is eligible to attend high school. There is no guarantee that Param will be able to access these services if he moves to another catchment area. The Mother maintains that if the Matrimonial Home sold, she could not afford to rent a home in the school’s catchment area. The Mother also maintains that a move would be too much of an upheaval for Param. Finally, Param’s tutor lives only two doors away, and the neighbours are accepting of and assist with Param.

22The Father challenges the veracity of the Mother’s claims. Despite her assertion that had to remove the carpet to address Param’s allergies, the Father has provided evidence that the Matrimonial Home already had laminate or ceramic flooring when it was purchased. The other modifications indicated by the Mother are easily installed in a new home with minimal expense.

23The Father also advised that since Param was born, he has lived in four separate residences, two after his diagnosis of autism in 2006. He has only lived in the current home October 2014, after living in the last home for eight years. He agrees the Param takes longer to adjust to changes than most children but claims that Param has adjusted to the previous moves. He also maintains that none of the evidence put forth by the either of Param’s psychiatrists indicates that the move itself will make Param unstable. The Father also provided an MLS listing showing 26 properties for rent or for sale in the neighbourhood of Param’s school.

Law

24A property owner has a prima facie right to sell their jointly owned property: Goldman v. Kudeyla, 2011 ONSC 2718 at para. 17; Delongte v. Delongte, 2019 ONSC 6954 at para. 16.

25That being said, orders for the sale of a matrimonial home made before the resolution of all Family Law Act issues, especially those related to equalization, should not be made as a matter of course. Spousal rights of possession, or any order for interim exclusive possession, should be taken into account: Martin v. Martin (1992), 1992 CanLII 7402 (ON CA), O.J. No. 656 at para. 26 (Ont. C.A.); Fernandes v. Darrigo, 2018 ONSC 1039 (Div. Ct.). An application for the sale of a jointly held property prior to trial should be deferred where there are substantial rights in relation to that jointly owned property that would be jeopardized by the sale or prejudice the rights of the opposing party: Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), O.J. No. 2183 (Ont. C.A.) at p. 13.

26To make a pre-trial order for sale of the 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 there is no competing interest, the sale should proceed. If there is a competing interest, then it lies to party seeking the sale to show that it would not prejudice the rights of the party resisting: Goldman at para. 18. Some of the compelling circumstances in which one or both tests favoured the resisting party, include the availability of a trial within a short period of time, prejudice to the equalization payment, or the need to preserve the residence for a vulnerable spouse or child who might well retain the home in the cause: Goldman at para. 19.

27This court in the past has found it inappropriate to order a matrimonial home sold prior to trial when the residency of a vulnerable child was a stake. In Fernandes, one of three children suffered from autism and other health conditions. In that motion, the court was satisfied on the evidence that a move would generate anxiety and depression in the child: paras. 3 and 20. If the house was sold prior to trial, it would create a prejudice that could not be undone. In the case of Wilson v. Bedard, 2017 ONSC 4517, at trial, the court awarded exclusive possession of the matrimonial home to the Mother until her child, who had a severe case of autism spectrum disorder and other genetic and developmental conditions, finished elementary school, which was approximately two years later. One of the factors that the court considered was that the school had greatly accommodated this child. The court also accepted the Mother’s evidence that it the child would benefit from staying the in community that he knew and the school catchment area where his friends lived. Of particular importance to the Mother was a neighbour who went out of her way to provide support and assistance, and who was familiar with the child’s needs and routines.

28The Father maintains that the Mother has provided no evidence that a move would be harmful or detrimental to Param. I agree that there are no expert opinion letters offered on this issue directly related to Param. What has been presented though, is an ample assortment of letters or documents confirming Param’s diagnosis and behavioural issues, none of which the Father denies. The Mother may have to provide better evidence at trial, but I am satisfied that for the purposes of this motion, the evidence establishes that Param has special needs, that they are being serviced by his local school and are supported by his neighbours.

29I have also considered the factors the court must take into account when making, or in this case continuing, an Order for exclusive possession as set out in ss. 24(3) and 24(4) of the Family Law Act. The accommodations in Param’s school, his familiarity with his home, and the acceptance and assistance of the neighbours all suggest a finding that it continues to be in Param’s best interests to remain in this home until at least the trial in this matter. It will be within the purview of the trial judge to determine if that should continue.

30I am concerned about the Mother’s inconsistent evidence about her intention or ability to purchase the Father’s interest in the matrimonial home. But for Param’s special needs, this motion would be decided differently. Nevertheless, after reviewing the circumstances of this case in its entirety, especially considering Param’s special needs, I do not find that this is an appropriate case in which to order the immediate sale of the Matrimonial Home in advance of trial. In so concluding, I have considered the following circumstances:

a) The Mother already has an order granting her exclusive possession which has remained in place for over three years;

b) The Mother will be seeking an order at trial for exclusive possession of the Matrimonial Home until Param’s finishes high school, which may extend beyond the date of the trial. If the Matrimonial Home is sold now, it will irreparably prejudice the Mother’s ability to make that claim at trial;

c) The equalization payment has not been determined, and the mother claims there are arrears owing in child and spousal support. These adjustments will have an impact on the Mother’s ability to purchase the Father’s interest in the Matrimonial Home;

d) If the Matrimonial Home was sold prior to these issues being determined, the sale proceeds would be held, which would leave the Mother without the financial ability to find suitable housing for her and Param. Given Param’s special needs, finding a suitable place may not be as easy as the Father’s assumes;

e) The most important consideration is Param’s special needs. Param’s diagnosis of autism and intellectual disability are not challenged. His status at his school and enrollment in his programme support that conclusion. The Father does not deny that Param can be violent at times and hard to handle – physically, he is a grown man, but with diminished intellectual capacity and very recently has been shown an increased inability to control his behaviour;

f) The Matrimonial Home is located in the catchment area of Param’s school, which offers specialized programming to accommodate his needs; if he has to move outside of this catchment area, he may be wait-listed for these same services;

g) While other housing may be available in the area, Param at this time lives in a home where his neighbours are accustomed to him and his behaviour. One neighbour assists the Mother when Param needs to be picked up at school and Param’s tutor lives only a few houses away;

h) The Father is not required to pay any expenses associated with the Matrimonial Home and has not been since June 2018 when the Mother took over;

i)The Father claims that he has been waiting for five years to sell the Matrimonial Home, but this is not entirely accurate. He remained in the home for the first 1.5 years. He did not move to sell the house for another year, and then indicated his willingness to wait until the end of the 2019/2020 school year. To be clear, this patience is to be commended and credit should be afforded the Father because of this, but it alleviate the prejudice which would be suffered by the Mother and Param if the home was sold immediately; and

j)The Father is able to maintain his own residence at this time and will eventually benefit from the increased value of the Matrimonial Home.

Refinancing of the Matrimonial Home

31Although the Mother obtained leave to bring a motion and sought the relief in her affidavit, the father choose, in his extensive reply materials, to not address the request, other than to say it was not properly made and should not be considered. He continues to maintain that the Matrimonial Home should be sold.

32The Father has had ample opportunity to make more substantive submissions to the relief sought. He was aware that the Mother had leave to make this request. He was able to see the relief sought, plainly worded in both the Mother’s affidavit at para. 11 and her factum at para. 43. Keeping in mind the primary objective of the Family Law Rules as set out in r. 2(2) and the need to save expense and time and to deal with matters justly, I am dispensing with the requirement that the Mother serve a Notice of Motion and will consider her motion. I am also relying on r. 2.03 of the Ontario Rules of Civil Procedure, which I am permitted to rely on by virtue of r. 1(7) of the Family Law Rules.

33Given my decision regarding the Father’s Motion, I am granting the relief sought by the Mother and will order that the Father cooperate in having the Matrimonial Home refinanced. I am making this decision without prejudice to either parties’ ability to seek a post-separation adjustment with respect to the higher mortgage payments since the mortgage came up for renewal and for any penalty that may be payable when the house is eventually sold or transferred.

Conclusion

34For the forgoing reasons, I made the following orders:

a) The Father’s motion is dismissed;

b) The Mother shall continue to have exclusive possession of the Matrimonial Home until trial;

c) The Mother has leave to seek her relief without the necessity of serving a Notice of Motion;

d) The Father will cooperate with the Mother to renew the mortgage on the Matrimonial Home, without prejudice to either parties’ ability to seek a post-separation adjustment with respect to the higher mortgage payments since the mortgage came up for renewal and for any penalty that may be payable when the house is eventually sold or transferred; and

e) The parties are encouraged to resolve the issue of costs themselves. If they are unable to do so, the Mother is to serve and file her written submission on the costs of this motion on or before 4:30 p.m. on August 28, 2020. The Father shall serve and file his responding submissions on or before 4:30 p.m. on September 4, 2020. The Mother, if she chooses, shall file reply submissions on or before 4:30 p.m. by September 11, 2020. All written submissions are restricted to two pages, single-sided and double-spaced, exclusive of costs outline and offers to settle. All costs submissions shall be e-mailed to scjtrialofficebrampton@ontario.ca, and directed to my attention. No submissions may exceed 10 MB.

Fowler Byrne J.