COURT FILE NO.: FC-19-273
DATE: September 17, 2020
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tracy Darlene Mirault, Applicant AND: David Alexander Martin, Respondent
BEFORE: Honourable Justice M. Fraser
COUNSEL: M. Peter Sammon, Counsel for the Applicant Brent Smith, Counsel for the Respondent
HEARD: September 15, 2020
ENDORSEMENT
[1] The Applicant moves for partition and sale of the jointly owned matrimonial home. She asks that the net proceeds of sale be held in trust pending the resolution of this matter or further court order. The Respondent did not advance a cross-motion but in response to the Applicant’s motion, contests the proposed sale, asks for exclusive possession of the matrimonial home and asks for an accounting from the Applicant for items that have apparently been sold by her.
Background
[2] The parties began living together in 2005, were married on October 6, 2012 and separated on May 9, 2019. There were no children of the relationship/marriage.
[3] The matrimonial home is jointly owned by the parties. It is encumbered by a mortgage to the Royal Bank of Canada.
[4] The Applicant asserts that she has been residing in the home since the parties’ separation. She has been exclusively paying the costs of maintaining the home, including the cost of the mortgage and utilities.
[5] The Applicant believes there is approximately $110,000 in equity in the home. She wishes to sell the home. She believes that any delay in listing same will prejudice her ability to obtain a good price for her share of the home’s equity given the recent upturn in the local real estate market.
[6] The Respondent is subject to a three-year Probation Order which prohibits him from communicating directly or indirectly with the Applicant and her new partner. The Respondent is also prohibited by that order from attending at the home where the Applicant lives.
[7] The Respondent has represented in the past that he wishes to purchase the Applicant’s interest in the home but he has never made any actual offer. He maintains that he requires exclusive possession of the home in order to assess what, if anything, he feels would be any appropriate value for the home. He claims that he cannot consider making an offer until he has had such an opportunity.
[8] The Respondent has never asked to have an appraiser attend the home.
[9] The Applicant believes the Respondent is attempting to draw out the length of this litigation and cause delay.
Partition and Sale
[10] 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. A court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made (See: Davis v. Davis, 1953 148 (ON CA), [1954] O.R. 23 (CA): Kaphalakos v. Dayal 2016 ONSC 3559 (SCJ); Marchese v. Marchese 2017 ONSC 6815 (SCJ)).
[11] 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 (See: Afolabi v. Fala, 2014 ONSC 1713 (SCJ)).
[12] The Respondent, in this instance, wants to buy the Applicant’s interest in the matrimonial home, although he has not offered a price. His financial ability to do seems questionable. He has never suggested that he has been approved for financing. He claims in his Answer that he is about to be “cut off” his short-term disability and that he will then be without an income. His financial statement does not reveal the type of assets which are available to finance such a purchase. His assets consist mainly of used personal property consisting of vehicles, tools and equipment. Liquidating those items to come up with sufficient funds to finance the purchase of the Applicant’s interest would be a challenge.
[13] It is not suggested nor, from a review of the Applicant’s financial statement, is it likely that there will be any equalization owing to the Respondent by the Applicant. Her interest in the matrimonial home is her sole asset of any significant value. Therefore this is not a case where it is anticipated that the Respondent would seek to set off an equalization owing to him against the value of the Applicant’s share of the equity.
[14] The Respondent’s main argument against an order for the sale of the home is based upon the fact that he has made a “claim” for exclusive possession of the home in his Answer and that an interim order should not be made given this would prejudice his substantive right to advance this claim at trial.
[15] It is true that 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 (See: Silva v. Silva, 1990 6718 (ON CA), [1990] O.J. No. 2183 (CA)).
[16] The mere “preference” to occupy the matrimonial home, however, does not justify an order for exclusive possession. The Respondent has not advanced any evidence that would suggest that he has a reasonably realistic claim for an order for exclusive possession pursuant to section 24 of the Family Law Act.
[17] Further, the court cannot compel one joint tenant to sell to the other (See: Martin v. Martin 1992 7402 (ON CA)). As such, his expressed desire to consider purchasing the
Applicant’s interest in the home if he were first given possession of it, is not a convincing basis to deny the Applicant’s request to sell her interest on the open market.
[18] Given the very recent upturn in the real estate market, and the inability to predict how long this will last, it is potentially prejudicial to the Applicant to deny her the ability to market the home while the market is “hot”.
[19] In assessing and guarding against potential prejudice, the court must take a realistic view of the parties’ respective claims. Where the circumstances of the parties are such that a sale would be the inevitable result at trial, there is little justification for delaying the sale. I consider that to be the case in this instance.
The Respondent’s request for exclusive possession
[20] For the reasons set out above, this request is denied.
The Respondent’s request to an accounting of items sold by Applicant
[21] Both parties appear to have sold items. It is unclear who owned what and whether those items are subject to being accounted for in the equalization is to some extent in dispute. Both parties should be providing updated sworn financial statements and
Conclusion
[22] I order as follows:
a. Both parties shall arrange for and provide the necessary consents for the Respondent to attend at the matrimonial home, known municipally as 73 Pembroke St. Cobden, On., within ten days from the date of this Order (or a later date by the parties’ mutual agreement) to retrieve his personal belongings located at that property including any and all tools, equipment, vehicles.
b. The Respondent shall, at his sole expense, be permitted to have an appraiser/real estate agent of his choosing attend at the said matrimonial home within ten days from the date of this Order (or a later day if by the parties’ mutual agreement) so that such individual selected by him may advise him with respect to the value of the home.
c. Absent any agreement between the parties otherwise, the matrimonial home shall be listed for sale as at September 28, 2020. The said property shall be, absent agreement by the parties otherwise, listed with Judi Moffat of Exit Realty at a listing price of no less than $259,000.00.
d. The parties shall accept any reasonable offer in relation to the matrimonial home. They shall communicate through their respective counsel. It is my expectation that there shall be no delay or attempt to frustrate this order or otherwise cause mischief designed to thwart a sale. In the event the parties are unable to reach an agreement on any aspect of the sale, this motion may be returned before me on an urgent basis. The parties should expect that decisive action will be taken should the matter have to be returned and such action may include a party losing input or control over the sale process and being additionally exposed to a significant cost order.
e. If the Respondent wishes to purchase the Applicant’s interest in the property, he may attempt to purchase same on the open market as would any other potential buyer (absent the parties have agreed to terms privately prior to the listing of the property for sale).
f. The net proceeds of the sale shall be held in trust pending further order or written agreement between the parties.
g. The parties shall, within twenty days, provide the other party with the documentation to support the values set out in their sworn financial statements. If a party has sold property which was owned by either of them at the parties’ date of separation, then that party shall provide the other with the full particulars of the sale including supporting documentation. If a party has not delivered an updated sworn financial statement in the last thirty days, they shall deliver an updated sworn financial statement within twenty days’ time.
h. The parties may make written submissions as to costs not exceeding three pages in length, to which a bill of costs and any offers to settle may be appended. The Applicant may do so within twenty days from the date of this Order and the Respondent shall have ten days following receipt of the Applicant’s submissions to submit his response.
Fraser J.
Date: September 17, 2020