COURT FILE NO.: FS-18-93550-00

DATE: 2020 09 21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Amandeep Singh Brar

V. Sehdev, Counsel for the Applicant

Applicant

• and -

Manpreet Kaur Brar

A. Iyathurai, Counsel for the Respondent

Respondent

HEARD: September 11^th, 2020

REASONS FOR DECISION

LEMAY J

[1] The Respondent brings a motion for various relief, including exclusive possession of the matrimonial home, a preservation order, a non-depletion order and other related relief.

[2] The Applicant brings his own motion to have the matrimonial home, which he has sole title to, should be sold. He acknowledges that some of the proceeds from the sale should be held in trust. The Respondent resists this motion, and argues that she should have sole possession of the matrimonial home and that it should not be sold. She also seeks an Order to have the Applicant bring the mortgage into good standing.

[3] For the reasons that follow, the Applicant’s motion is granted. The various requests of the Respondent in respect of the matrimonial home are all dismissed. The Respondent’s motion for a preservation order is dismissed, but on terms set out below.

Background

a) The Parties’ Relationship

[4] The Applicant is 38 years old and the Respondent is 31 years old. The parties were married on February 13^th, 2008. There are two children, a 10 year old girl and a 9 year old boy.

[5] The Applicant worked as a roofer, and owns a portion of his own roofing company. He claims to be unable to work at this point because of a fall from a roof in 2017, which was exacerbated by an incident when he was in custody in 2019. The Respondent has previously been employed outside the home, but is not currently employed.

[6] The parties first separated in September of 2018, when the Respondent went to British Columbia. As I understand it, this trip was originally with the Applicant’s parents, but the Respondent did not return from British Columbia when the Applicant’s parents returned. I understand that the children may have been enrolled in a school in British Columbia for a period of time.

[7] The Applicant brought a motion to have the children returned to Ontario, and that motion was granted in November of 2018. It appears to have proceeded mostly on consent. After that motion was granted, the parties reconciled for a period of time.

[8] The parties separated again on November 4^th, 2019. On that day, the Applicant was charged with assault and uttering threats. Additional charges were added subsequently.

[9] The Children’s Aid Society (“CAS”) was briefly involved with this family in 2014, after an Early Childhood Education worker brought some concerns from the daughter to the CAS’s attention. The concerns were about the possibility of domestic violence. Those concerns were investigated and were determined to have been unfounded.

[10] I understand that the family has had some involvement with the CAS since 2014, although I do not have much in the way of details about that involvement. I will return to the issue of CAS involvement below.

b) The Course of This Litigation

[11] The litigation was originally commenced by the Applicant in 2018, in part to obtain an order to have the children returned to Ontario. Once the parties reconciled in the fall of 2018, the litigation was put on hold. In 2019, when the parties separated again, the file was revived and the same file number was used.

[12] The Application has been amended as a result of the changes since the first separation. The parties have also attended at a case conference in this matter. Based on my review of the materials, disclosure is proceeding slowly and both parties have not completed their disclosure obligations. This lack of complete disclosure makes assessing this case more difficult.

[13] Part of the relief that the Respondent initially sought in this case was an order permitting her to move to British Columbia with the children. During the course of submissions on the motion, counsel for the Respondent advised that consideration was being given to changing the relief sought in the Respondent’s answer, but that this potential change had not been discussed between counsel and the Respondent.

[14] I am not aware of there being any trial date in this matter, and I am not aware of any other motions having been scheduled at this time. However, it appears to me possible that there will be motions on access, custody and disclosure at some point in the not too distant future.

c) The Status of The Matrimonial Home

[15] Title to the matrimonial home is solely in the Applicant’s name. There is no dispute, however, that the property at 193 Bonnieglen Farm Blvd. in Caledon is a matrimonial home within the meaning of the Family Law Act (R.S.O. 1990 c. F.3., as amended) (“FLA”)

[16] The matrimonial home was purchased in 2016 for $800,000.00. At the time, a mortgage was placed on the home with RBC in the sum of approximately $440,000.00. The mortgage is currently approximately $300,000.00. I had no direct evidence of the value of the house. However, the parties seem to be in agreement that the current value of the property would be in the range of $1.3 million. In other words, there is a significant amount of equity in the property.

[17] After the parties separated, the Applicant stopped making the mortgage payments. As a result, RBC initiated default proceedings on the mortgage and now has a judgment. RBC’s counsel has advised that the house can still be sold by the Applicant and the Respondent, but that she may at some point get instructions from RBC to continue with the enforcement proceedings.

[18] Applicant’s counsel has made significant efforts to get the Respondent to agree to sell the property. The Respondent has not agreed to sell the property. Instead, the Respondent asserts that the Applicant is still employed as a roofer and that he is financially capable of carrying the property. As a result, the Respondent asks the Court to order that the Applicant bring the mortgage into good standing so that she can continue to live in the property.

[19] Finally, it is clear that the Applicant owns another investment property. It appears that there is a tenant in this property, and that the Applicant is earning some rent from this other investment property. It is not clear how long the tenant’s lease is, or how much equity is in that property although there is clearly some equity in that property.

[20] There is also some suggestion on the materials that the Respondent owns (with her brother) an investment property. It is not clear either how valuable this property is, or what precisely the Respondent’s interest in the property is.

d) The Motions Before The Court

[21] As I have indicated, this litigation has been before the Courts for some time. The parties had a case conference prior to the Courts being shut down as a result of the pandemic. However, there were no motions prior to the closure.

[22] The Respondent sought to bring an urgent motion relating to these issues in August of this year. The request for an urgent motion was denied by the local administrative judge, Tzimas J. However, Tzimas J. advised that the parties could schedule a motion in the regular course.

[23] A date of September 11^th, 2020 was obtained. Both parties served notices of motion and materials in relation to the relief that they were seeking. There have also been extensive Affidavits provided by each side in reply. I have considered all of that material in making my decision.

[24] There are two procedural issues that have arisen. First, the Respondent objects to the Applicant’s motion as it was the Respondent who booked the date for her motion. In my view, this objection is without merit for three reasons, as follows:

a) Counsel for the Applicant is correct when he observes that it is often the practice for parties to bring motions and cross-motions at the same time. Given the problems with Court scheduling because of the pandemic, this reason, alone, might not be enough to hear all of the matters at the same time. However, there are other reasons.

b) The motion for preservation of assets, the motion for exclusive possession of the matrimonial home and the motion to sell the home engage many of the same facts. Indeed, the motion to sell the home cannot really be resolved without considering the motion for exclusive possession. Accepting the Respondent’s position would result in a duplication of work by both the parties and the Court.

c) The parties had ample opportunity to respond to the materials that were filed by the other side. As a result, no useful purpose would have been served in adjourning half of the issues in this case, especially since the issues are interrelated and I have a complete record before me.

[25] Counsel for the Applicant argues that the Respondent’s last Affidavit was improperly filed. In my view, it is better to focus on the merits of the case. I did not hear counsel request an adjournment to deal with anything new in the Affidavit. I would also observe, to both counsel, that this case has the potential to be very high conflict. Therefore, it is important to focus on the merits and on resolving the disputes rather than on perceived procedural problems.

[26] The argument was conducted by teleconference. During the course of the argument, I asked both counsel whether they had case law they were relying on. Mr. Sedev stated that he did have some cases he was relying upon, and that he had provided those to his friend immediately before the conference call. Ms. Iyathurai also advised that she had case law. Neither party had provided me the case law in advance of the hearing, so I reviewed it after the argument had concluded. I also understand from Mr. Sedev’s e-mail attaching his case law that he never had an opportunity to review Ms. Iyathurai’s case law. I did not provide Mr. Sedev the opportunity to comment on this case-law as his comments would not have changed the outcome of the case and, more importantly, the points raised in the cases were fully argued by both sides.

[27] As a practical matter, I would note two points. First, for both counsel, in a virtual environment it is helpful if the cases are provided in advance of the argument. Second, for Ms. Iyathurai, it is important to ensure that opposing counsel receives the case law before the arguments on the motion are complete.

Issues

[28] These facts raise the following issues:

a) Should the Respondent be entitled to exclusive possession of the matrimonial home?

b) Should the matrimonial home be sold?

c) Should a preservation Order be issued?

d) Should the Applicant have to pay the Respondent an interim equalization payment?

[29] I will address each issue below.

Issue #1- Exclusive Possession of the Matrimonial Home

a) The Arguments of the Parties

[30] The Respondent asserts that she should have exclusive possession of the matrimonial home until some undetermined date in the future, and that the Respondent should be required to bring the mortgage on the matrimonial home into good standing. In support of her position, the Respondent advances the following arguments:

a) The Respondent is a stay-at-home mother and is not currently working.

b) The child support that has been ordered to this point has not been paid.

c) It is not convenient for the children and the Respondent to have to move.

d) The children and the Respondent have special needs, and accommodating them in the house will assist with those needs.

e) There is a history of domestic violence.

[31] I would note that these arguments relate to both exclusive possession of the matrimonial home and the question of whether the property should be sold. I will deal with the arguments in my analysis of each issue as necessary.

[32] The Respondent argues that the property should be sold. He rejects the arguments advanced by the Applicant, and advances four additional arguments in support of his position:

a) The property is being sold by RBC in any event, and the parties could be prejudiced by losing all or most of their equity if they do not sell the property themselves.

b) The property will have to be sold at some point in the litigation.

c) The Respondent has no right to purchase the property from the Applicant

d) Given that the Applicant is seeking an order to move the children to British Columbia, it is not open to her to argue that their best interests require them to remain in their current school and neighbourhood.

[33] Again, these arguments relate to both the exclusive possession of the matrimonial home and the question of whether the matrimonial home should be sold. I will address them as appropriate.

b) The Legal Principles

[34] Section 24 of the Family Law Act sets out the principles that apply when considering whether exclusive possession of the matrimonial home should be ordered. In particular, section 24(3) sets out the following criteria for the Court to consider:

In determining whether to make an order for exclusive possession, the court shall consider,

(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;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children. R.S.O. 1990, c. F. 3, s. 24 (3); 2014, c. 7, Sched 9., s.4.

[35] In this particular case, the most relevant factors are the best interests of the children, the financial position of both spouses, the availability of other suitable and affordable accommodations and the history of alleged violence. I will address each factor in turn. I will return to the relevant case-law at the end of my analysis.

Best Interests of the Children

[36] The Respondent argues that it is in the best interests of the children to remain in the matrimonial home, both for convenience and because they have special needs. Given the outstanding criminal charges against the Respondent, this would result in at least de facto exclusive possession of the matrimonial home if the property is not sold. Indeed, the Respondent and the children have been living in the property since the date of separation and the Applicant has been excluded by virtue of his bail conditions. Nothing in this order will change that fact.

[37] I acknowledge that these children’s lives have been disrupted by a number of factors, including their parents’ separation. However, convenience is not a reason on its’ own for the children to remain in the matrimonial home indefinitely and for the Respondent to have exclusive possession of the matrimonial home. There is also no evidence that the disruption are experiencing is going to be significantly worsened by having to move.

[38] In argument, I pressed counsel for the Respondent to identify the date when her client would move from the matrimonial home. Counsel acknowledged that her client could not remain in the home indefinitely, but that she should be allowed to remain for a while. In my view, it is clear that the Respondent wishes to remain in the home indefinitely. Based on the submissions I heard, I am also of the view that the Respondent wishes to purchase the home from the Applicant.

[39] This brings me to the argument that the children have special needs. In support of this argument, the Respondent states in one of her Affidavits as follows:

The Children are both enrolled in the local school. They have had some difficulties academically. Both the Children have a learning disability and would benefit from remedial help. It would be disruptive to now remove the Children from their school and put them into an entirely new school. They would have to integrate themselves into a new social circle and possibly, have to catch up with their peers. I do not believe it is in the Children’s best interests to uproot them now and move them do a different school. The Children’s school friends and peers live in the area as well.

[40] The Respondent also seems to suggest that she is going to see a doctor (or a specialist) to discuss the children’s learning disabilities. However, I have no evidence whatsoever of either what the alleged learning disabilities are or what the proposed treatment or program to manage that disability would be.

[41] On that point, I should note that if the children have a learning disability, this would likely be mentioned in reports from the school or visits with the family doctor. There is no information from either of these sources to support the Respondent’s Affidavit. The absence of this evidence is particularly surprising, given that the Respondent had been planning to bring this motion for a month.

[42] Given the absence of any independent evidence on this motion, I am not prepared to conclude that there are any academic or developmental reasons for leaving the children in the matrimonial home. On this point, see the discussion in Peterson v. Peterson (2018 ONSC 5494 at paras 37 to 40). I would add, however, that I am not making this determination on a final basis. The records produced at trial may very well show something different.

[43] The other issue in respect of the children’s best interests that the Respondent has raised is the experience that the children have had in respect of alleged violence from the Applicant. I will deal with that issue when I discuss the violence in the relationship factor below.

[44] I should not leave the best interests of the children topic without noting the substantial inconsistency that exists in the Respondent’s position. On this motion, the Respondent argues in essence that the children should remain in the matrimonial home as long as possible. However, in her Answer, the Respondent’s current position is that the children should move to British Columbia. Further, the Respondent actually took the children to British Columbia for a period of a couple of months in 2018. This inconsistency supports my conclusion that there is no substantial merit to the Respondent’s position that the children’s best interests require them to remain in the matrimonial home.

The Financial Position of Both Spouses

[45] At this point, it is difficult to determine the financial position of either spouse. The only facts that I am certain of is that the Applicant owns a roofing business and that the Respondent is not employed outside the home. However, on the record I have, I cannot determine how much money the Applicant makes or what property (if any) the Respondent owns.

[46] I am troubled by the fact that the Applicant stopped paying the mortgage immediately after he moved out of the house. In the materials before me, there is no good explanation for the immediate cessation of mortgage payments upon separation.

[47] In his Affidavit, the Applicant included a medical note that states he is not yet in a position to return to work. This medical note is dated January 6^th, 2020. There are also some physiotherapy treatment notes from November of 2019. However, there is no contemporaneous evidence that the Applicant is currently unable to work.

[48] I am not making any final conclusions on the question of the Applicant’s income or his ability to work. That is a matter for judges considering other motions and, perhaps, the trial judge. However, for the purposes of this motion, I am not prepared to accept that the Applicant is unable to work, and I will decide the balance of the motion on the basis that the Applicant is able to work.

[49] On this point, it appears to me that it is possible that the Applicant’s conduct in refusing to pay the mortgage has triggered the foreclosure proceedings. As a result, this is not a case in which I place a lot of weight on the foreclosure proceedings as a ground to order the sale of the home.

[50] This brings me to the Respondent’s financial situation. I agree that the Respondent’s financial situation is more precarious than the Applicant’s financial situation. However, this precariousness does not support an order for exclusive possession for three reasons:

a) Based on both the concessions of the Applicant, and my Orders, the Respondent will likely be in receipt of several hundred thousand dollars when the house sale closes. This will permit her to rent accommodation in the area where she and the children currently live. This is, by far, the most important point about the Respondent’s financial position on this motion.

b) The Applicant has worked in the past and, given the ages of the children (10 and 9) can consider returning to the workforce. While I acknowledge the current economic circumstances make it more difficult to find employment, there is no indication of any efforts to find employment, even before the pandemic started.

c) Disclosure has not yet been completed, and there are gaps in both parties’ disclosure. As a result, I do not have significant details about the other property that the Respondent allegedly has an ownership interest in.

[51] The records provided by the parties, and particularly the Applicant, are at best incomplete. The key point on the issue of the financial position of the parties, however, is that the sale of the home will result in significant monies being provided to the Respondent. As a result, this factor does not support exclusive possession of the matrimonial home once it is sold.

The Availability of Other Suitable and Affordable Accommodation

[52] The Applicant clearly has access to other accommodations. However, the Respondent’s circumstances are less clear. The Respondent argues that it would be difficult to find other accommodations. Indeed, she states this as a fact in her Affidavit. There are two problems with this statement of fact.

[53] First, there is no independent or empirical evidence to back this statement of fact up. I would expect a list of rental properties in the area along with their cost to demonstrate any difficulties in finding accommodation. Alternatively, the Respondent could have provided information from a real estate agent to show that there were very few, or no, rental properties in the area or that those properties were expensive. None of this evidence was provided.

[54] Secondly, the Respondent’s own Affidavit makes reference to the fact that she has considered the cost of rental properties in the area. However, as I noted above, she has not provided any specific evidence from which I could determine that the costs of a rental property are prohibitive. The fact that the Respondent has looked at the cost of rentals in this area but has chosen not to provide any of that information to the Court suggests that the information the Respondent had obtained would not support her position.

[55] Based on the absence of evidence from the Respondent, and based on the Orders I am making about the proceeds of sale from the matrimonial home, the availability of suitable alternative accommodations does not assist the Respondent in her claim for exclusive possession of the matrimonial home.

The History of Violence

[56] The Respondent has made significant allegations of violence, both against her and against the children. These allegations have led to criminal charges against the Applicant, which are pending before the Courts. The Applicant denies these allegations.

[57] Allegations of domestic violence are a significant factor in deciding whether there will be exclusive possession of the matrimonial home. However, the allegations in this case, like many of the arguments the Applicant is advancing, suffer from a lack of independent evidence as well as an inability for me to consider the witnesses in a full cross-examination.

[58] For example, in her September 1, 2020 Affidavit, the Respondent states “the CAS records confirm that the Children have been subject to [the Respondent’s] abuse as well, and they have been acutely aware of Amandeep’s abuse towards me.” However, the only CAS records that originate from the CAS that are part of this motion record are described at paragraphs 9 and 10 above. The only post-separation CAS record I have is the documentation from a telephone report made by the Applicant to the CAS. This self-reporting does not shed any light on either the thoughts of the children or any concerns that the CAS has with the children’s environment, or relationship with the Applicant.

[59] In terms of the allegations of domestic violence that the Respondent says that she suffered, that matter is before the criminal courts, and the Applicant has declined to provide sworn testimony in this proceeding. This is an understandable position. However, given the absence of any documentation, it leaves me in the position of being unable to form a firm view on the merits of these allegations. As a result, this factor is not a significant consideration on this motion.

Conclusion

[60] When these criteria are considered against the facts of this case, it appears that an Order of exclusive possession is neither necessary nor appropriate. However, the parties have provided me with a significant body of case law. I will now review those cases with the factual and legal conclusions I have set out above in mind.

c) The Relevant Case law

[61] The case-law provided by the Applicant also does not assist her. In Norman v. Connors (2010 ONSC 1975), the Court was faced with a case where the parties had been in a common-law relationship. Ms. Norman had sole title to the residence that Mr. Connors was living in, and the mortgage had fallen into arrears after the parties had separated. Mr. Connors was claiming a trust interest in the property, and brought a motion to have the property sold immediately. Ms. Norman asserted, without much evidence, that she could carry the costs of the mortgage. The Court dismissed Mr. Connor’s motion on the basis that any alleged trust interest would not crystallize until after trial, and that he might only be entitled to a remedy in damages.

[62] Norman is clearly distinguishable from the case before me. In this case, the Applicant is seeking to sell the property that he holds sole title to, and to conduct the sale before the Bank does so. It is not a case where the Respondent has any interest in the property, other than the rights she accrues by virtue of this property being a matrimonial home. In other words, unlike Ms. Norman, it does not matter that the Respondent might be able to carry this property. She has no right to purchase it, except on the open market.

[63] Counsel for the Respondent also referred me to the decision of Emery J. in Barbini v. Edwards (2014 ONSC 6762). On reading this case, there is no significant discussion of the order granting Ms. Barbini exclusive possession of the matrimonial home. There is also no discussion of any request by Mr. Edwards to sell the matrimonial home. As a result, Barbini is distinguishable from the case before me. It may be relevant to the preservation Order, and I will return to that below.

[64] In my view, the case-law provided by the Applicant is more relevant to the facts of the case before me. For example, Peterson v. Peterson supra was a case with some of the same factors under section 24 that apply in this case. However, in Peterson, the additional factor supporting exclusive possession of the matrimonial home was the fact that Ms. Peterson was running a daycare out of the home, which was the parties’ only significant source of income. Even then, exclusive possession was denied and partition and sale was granted.

[65] Similarly, in Lo v. Mang (2009 CanLII 59158), Greer J. was faced with a case where Ms. Lo had sole title to the matrimonial home. She had moved out of the home. Mr. Mang was continuing to live in the matrimonial home, and the children were with him at least part of the time. In that case, Greer J. rejected Mr. Mang’s arguments that it was in the children’s best interests to remain in the house.

[66] A reading of all of the cases provided by the parties suggests that, in cases like this, exclusive possession will generally not be ordered and the house will generally be sold. I turn to the second issue now.

Issue #2- Partition and Sale

[67] If there was an interim order for exclusive possession of the matrimonial home, then there would be a triable issue. However, for the reasons set out above, I am not ordering interim exclusive possession of the matrimonial home. As a result, I have to consider whether the sale of the matrimonial home should be ordered.

[68] Counsel for the Respondent refers me to the decision of Price J. in Dulku v. Dulku 2016 ONSC 6409. In that case, Price J. set out a detailed discussion of the Court’s jurisdiction to order the sale of a property. However, the facts in Dulku are different from the facts in this case for two reasons. First, in Dulku the parties appeared to jointly own the home, which is not the case here. Second, in this case, the Applicant has pled that he is seeking an order to sell the property.

[69] The analytical framework that applies to the facts of this case has been set out by McGee J. in Goldman v. Kudelya 2011 ONSC 2718. She stated (at paras 17, 18 and 19):

[17] 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 is subject to any competing interests under the Family Law Act that would otherwise be defeated.

[18] 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.

[19] There have been a number of cases in which the Court has denied an interim motion for sale prior to trial such as Arlow v. Arlow (1990) 1991 CanLII 12940 (ON CA), 33 R.F.L. (3^rd) 44 (OCA,) Walters v. Walters 1992 CanLII 8599 (ON SCDC), 1992 CarswellOnt 811 and more recently, Kereluk v. Kereluk 2004 CanLII 34585 Ontario S.C.J. In each case there were compelling circumstances in which one or both tests favoured the resisting party, such as the availability of trial within a short period, prejudice on 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.

[70] This framework has been adopted in numerous other cases, and I adopt it here. I have already set out the reasons why the Applicant does not have the right to interim exclusive possession of the matrimonial home. The question is whether she has any other rights that would be prejudiced by the sale of the matrimonial home.

[71] There was some argument from Counsel for the Respondent that the equalization payment might permit the Respondent to purchase the matrimonial home for herself. There are two problems with that argument. First, on the materials that were filed, it is speculative. I have no basis to infer that the equalization payment will be sufficient for the Respondent to purchase the Applicant’s home. Second, and more importantly, a party has no right to own the home after separation particularly when they do not have title to the home before separation, although they may be entitled to an equalization payment. McNamara v. Houston (2017 ONSC 6443 at para. 21).

[72] The other argument that could be advanced on behalf of the Respondent comes from the provisions of section 19 of the Family Law Act, which states that both spouses have an equal right to possession of the matrimonial home. However, because the Applicant has sole title to the matrimonial home, the Respondent’s right of possession is personal against the Applicant, and would (unless a Court orders otherwise) cease when the parties cease being spouses.

[73] In addition, the Respondent’s rights to possession of the matrimonial home do not prevent the mortgagee from obtaining possession of the property and selling the property. Manufacturers Life Insurance Co. v. Riviera Farm Holdings (1998) 1998 CanLII 1481 (ON CA), 39 O.R. (3d) 609 (C.A.).

[74] While it is, therefore, arguable that the Respondent has a right to live in the home, that right is not absolute either in time or as against the mortgagee. In addition, when the list of circumstances that McGee J. sets out is considered, it is clear that there is no trial in the near future in this case, there is no evidence of prejudice to the equalization payment if the property is sold and I see no evidence that would support a conclusion that the property needs to be preserved for a vulnerable spouse or child who will likely retain the home in the litigation.

[75] For all of these reasons, I find that the Applicant may proceed to sell the matrimonial home. However, I am also of the view that this sale should be done on terms, as follows:

a) The parties shall agree on the listing agent within seven (7) calendar days of today’s date. If they are unable to agree, then each side will provide the resumes of three real estate agents and I will choose one.

b) The parties shall agree on real estate counsel to conduct the sale transaction within fourteen (14) calendar days of today’s date. If the parties cannot agree, I may be spoken to.

c) The parties shall arrange to sell the house with a closing date of not less than sixty (60) days from today’s date.

d) The parties shall follow the reasonable advice of the listing agent on the listing price, as well as other issues in relation to the listing agreement and the acceptance of offers to sell the property.

e) The Respondent shall provide reasonable access to the property, and shall ensure that the property remains clean for showing.

f) In the event that the real estate agent recommends repairs to the property, those repairs will be carried out at the sole expense of the Applicant.

g) All costs associated with the sale of the property, including the discharge of the mortgage shall be paid out of the funds received on closing. The question of whether any enforcement costs charged by RBC should be the responsibility of the Applicant is a triable issue, and this direction should not be seen as abrogating the Respondent’s right to have that issue tried.

h) The Applicant is to advise RBC’s counsel of this decision forthwith after it is released.

i) I retain jurisdiction to address any issues that may arise in relation to the sale of the matrimonial home.

Issue #3- Should a Preservation Order be Issued

[76] The Respondent seeks to have a preservation Order issued pursuant to sections 12 and 40 of the Family Law Act. These provisions state:

12. In an application under section 7 or 10, if the court considers it necessary for the protection of the other spouse’s interests under this Part, the court may make an interim or final order,

(a) restraining the depletion of a spouse’s property; and

(b) for the possession, delivering up, safekeeping and preservation of the property.

40. The court may, on application, make an interim or final order restraining the depletion of a spouse’s property that would impair or defeat a claim under this Part.

[77] In making these orders, there must be some evidence to convince the Court that it is necessary to protect the Respondent’s interests before the Court will encumber the property of the Applicant. Christie v. Christie (2003 CanLII 1946 (ON SC)), [2003] O.J. No. 2087.

[78] This brings me to the evidence in this case. There is no real evidence to suggest that the Applicant is dissipating assets. Instead, counsel for the Respondent argues that the fact that the Applicant is claiming not to be able to work, and refusing to pay the mortgage suggests that he is hiding assets and that a preservation order should issue as a result.

[79] The Respondent refers me to the decision in Barbini v. Edwards. In that case, Emery J. made a preservation Order where there was substantial evidence of separate businesses and other issues. At paragraph 91, Emery J. set out the reasons that he made the preservation Order as follows:

[91] I make the preservation order not because there is any cogent evidence for the court to mistrust Mr. Edwards or to suspect him of any malfeasance now or in the future. I make this order out of an abundance of caution under the authority of section 12 and the principles set out in Bronfman v. Bronfman, 2000 CanLII 22710 (ON SC), [2000] O.J. No. 4591, 51 O.R. (3d) 336 (SCJ). The order is warranted given the complexity of the issues yet to be determined by the court in this application, questions of credibility on those issues and the ever present risk that where one party owns a business, assets could be dissipated to defeat the rights of another without it. It makes no sense to leave any asset at risk under these circumstances.

[80] Some of Emery J.’s observations are applicable in this case as well. In particular, the details relating to the Applicant’s business are not well-known. In addition, the Applicant’s unwillingness to pay the child support amounts are of considerable concern to the Court.

[81] However, I must also keep in mind that a preservation order is a considerable interference with the Applicant’s ability to deal with his assets. In this case, there are a considerable amount of assets owned by the Applicant, and I should not encumber them beyond the amount of the equalization payment and any other payments that may be ordered.

[82] As a result, I am not prepared to provide a blanket non-preservation Order. However, in my view it is appropriate to issue an Order that the Applicant will not further encumber his rental property pending the conclusion of this matter or a further order of this Court.

Issue #4- Interim Equalization Payment

[83] During argument, counsel for the Applicant indicated that his client is agreeable to paying some monies out of the proceeds of the matrimonial home on account of the equalization payment. In my view, this is an essential requirement if the house is to be sold. As a result, I am of the view that an interim equalization payment needs to be made immediately upon closing.

[84] The question becomes in what amount should that equalization payment be fixed? I have concluded that it should be half of the net proceeds from the sale of the matrimonial home up to a total of $400,000.00. This will permit the Respondent to obtain suitable housing for herself and the children. Any amounts over $400,000.00 will be held in trust pending the resolution of the financial issues in this case.

[85] I have concluded that an advance on equalization of $400,000.00 is a reasonable amount because it appears clear from both parties materials that the Respondent will most likely be entitled to an equalization payment of at least that amount, and it is an amount that the Applicant appears prepared to consent to.

[86] In addition to this payment, there is also the issue of the arrears for child support. If those amounts are not paid prior to the sale of the matrimonial home, then those amounts are to be paid out of the Respondent’s portion of the proceeds of the matrimonial home. This payment is in addition to the payment described in the previous paragraph.

[87] This brings me to the Applicant’s request that he be permitted to receive some of the proceeds of the matrimonial home. I am limiting that payout to 5% of the net proceeds of the matrimonial home up to a maximum of $40,000.00 at this time for the following reasons:

a) The Applicant has, on the evidence I have, failed to pay the child support owing to the Respondent. While I understand that the Applicant asserts that he is receiving CERB benefits, those benefits are at a level ($24,000.00 per year) that is almost at the level of the income imputed to the Applicant. The explanation that the Applicant cannot afford the child support payments is difficult to accept.

b) The Applicant has not provided full and complete financial disclosure, at least on the record that I have. It is, therefore, quite possible that the Applicant will owe much, if not all, of the money that is realized from the sale of the matrimonial home as an equalization payment.

c) Although I am not prepared to make a preservation and/or non-dissipation order, some protection of the Respondent’s equalization payment is necessary. That protection is best obtained by requiring the Applicant to leave the bulk of his portion of the proceeds from the matrimonial home in the real estate lawyer’s trust account in addition to ensuring that his rental property is not further encumbered.

[88] On the facts of this case, there is a strong argument that the Applicant should be required to leave the entirety of his portion of the matrimonial home in trust. However, I have ordered that the Applicant not further encumber his rental property, which significantly reduces his access to funds. I must be cognizant of the fact that many people are struggling financially as a result of the ongoing pandemic. As a result, some amount of money should be provided to the Applicant.

[89] The orders holding back money are only temporary in nature. In the event that a party has additional issues that might justify a change in these orders, a party may bring a further motion, subject to the usual legal principles that would apply to such a motion.

Conclusion and Costs

[90] For the foregoing reasons, I am ordering as follows:

a) The matrimonial home is to be listed and sold.

b) The parties shall agree on the listing agent within seven (7) calendar days of today’s date. If they are unable to agree, then each side will provide the resumes of three real estate agents and I will choose one.

c) The parties shall agree on real estate counsel to conduct the sale transaction within fourteen (14) calendar days of today’s date. If the parties cannot agree, I may be spoken to.

d) The parties shall arrange to sell the house with a closing date of not less than sixty (60) days from today’s date.

e) The parties shall follow the reasonable advice of the listing agent on the price, as well as other issues in relation to the listing agreement and the acceptance of offers to sell the property.

f) The Respondent shall provide reasonable access to the property, and shall ensure that the property remains clean for showing.

g) In the event that the real estate agent recommends repairs to the property, those repairs will be carried out at the sole expense of the Applicant.

h) All costs associated with the sale of the property including the discharge of the mortgage shall be paid out of the funds received on closing. The question of whether any enforcement costs charged by RBC should be the responsibility of the Applicant is a triable issue, and this direction should not be seen as abrogating the Respondent’s right to have that issue tried.

i) The Applicant is to advise RBC’s counsel of this decision forthwith after it is released.

j) I retain jurisdiction to address any issues that may arise in relation to the sale of the matrimonial home.

k) The Respondent shall be entitled to an advance on equalization in the sum of the lesser of 50% of the value remaining from the sale of the matrimonial home or $400,000.00.

l) Any outstanding arrears of child support are to be paid from the funds available on the sale of the matrimonial home. These amounts are to be paid in addition to the payment described in sub-paragraph (k).

m) The Applicant shall be entitled to receive a sum of the lesser of 5% of the value remaining from the sale of the matrimonial home or $40,000.00 from the proceeds of the matrimonial home.

n) The Applicant is precluded from further encumbering his rental property until either this matter is fully resolved or until a further Order of this Court is made.

[91] This brings me to the subject of costs. The parties are strongly encouraged to agree on costs. In the event that they cannot, however, each party may serve and file their costs submissions within ten (10) days of the release of these reasons. These submissions are to be no more than three (3) single-spaced pages, exclusive of offers to settle and case-law. I already have the parties’ bills of costs.

[92] The parties will then have seven (7) further days to provide any reply submissions. The reply submissions are to be no more than two (2) single-spaced pages, exclusive of case-law.

[93] The submissions are to be filed with the trial office. However, an electronic copy is to be provided to my judicial assistant. The parties have her e-mail address.

LEMAY J

Released: September 21, 2020