COURT FILE NO.: FC-19-FO0001033-0000
DATE: January 31, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jason Parent, Applicant
Self-represented
- and -
Margo Laroche, Respondent
Dylan Crosby, Counsel for the Respondent
HEARD: December 17, 2019
RULING ON A MOTION
JAMES J.
[1] This is a motion brought by the respondent for an order of sale respecting the parties’ jointly owned matrimonial home, for an order directing the preparation of a Voice of the Child Report and for permission to add a claim for spousal support.
[2] The property is occupied by the applicant who resides there with the parties’ 10-year-old daughter. The house is unfinished.
[3] The applicant estimates the minimum cost of completion to be about $13,000.00, and considerably more if a covered verandah is included but it is not clear that this item is a prerequisite to the issuance of an occupancy permit.
[4] There is a CRA lien for $87,650.00 but the applicant says that he has paid the lien down to about $13,000.00 and hopes to have it paid off by the spring. The full lien amount remains registered against the title to the property. The mortgage is about $200,000.00. The house was appraised in 2013 at $425,000.00 on a completed basis and $250,000.00 as is. The appraisal is clearly out of date. It indicated the building was about 30% complete.
[5] The applicant has done considerable work since then. The current equity cannot accurately be estimated. Fraser, J. ordered an appraisal last July, but the parties have not been diligent in complying with this order. An updated appraisal is now months overdue.
[6] The respondent’s request for an order that the applicant proceed with the work necessary to obtain an occupancy permit is unrealistic. This request is akin to be a mandatory injunction that would necessitate court supervision of the work which is not desirable.
[7] I note that the respondent is not paying any child support.
[8] It may be that the applicant has little incentive to finish the remaining work on the house. He may be trying to wait out the respondent and then buy her interest at an advantageous price. If this is his plan, he should not be permitted to do so.
[9] The respondent has the right to force the sale of the matrimonial home as a joint owner but there is a real question whether this should be done before trial without an updated appraisal because of uncertainty respecting current equity in the property.
[10] It is not clear whether the respondent would prefer to proceed with a sale now, on an “as is” basis with the likely realization amount being so uncertain. It is open to the respondent to obtain an independent assessment of the cost of the work necessary to obtain an occupancy certificate.
[11] Silva v. Silva 1990 CanLII 6718 (ON CA), [1990], 1 O.R. (3d) 436 established the proposition that the Family Law Act did not displace the Partition Act but a partition application should not proceed where it can be shown that it would prejudice the rights of either spouse under the Family Law Act.
[12] The law respecting orders for sale of a matrimonial home prior to trial was recently reviewed by Desormeau J. in Carmichael v. Carmichael, 2019 ONSC 6313 at paragraphs 39 to 51. She concluded on the particular facts of that case that an order for sale prior to trial was not appropriate. I am of the same view here because of the uncertainty whether a sale would actually benefit the respondent. Also, the property is providing a home for the parties’ daughter. More visibility as to the true equity in the property is required to justify an order for sale prior to trial.
[13] The respondent can bring a new motion for sale when an updated appraisal has been obtained. Also, if what the applicant says is correct, the CRA lien should be discharged within a few months.
[14] Turning to the other issues raised by the respondent in her notice of motion, leave is granted to amend the answer to claim spousal support within 30 days.
[15] Finally, the parties shall obtain a Voice of the Child report and share the cost to the extent Ms. Lavery’s fee exceeds the allotment from legal aid.
[16] On a preliminary basis and subject to hearing from the parties, success having been divided, I am included not to award costs to either party. However, if either party wishes to request costs, a bill of costs and costs outline may be delivered within 10 days and the other party shall have 10 days to respond.
Mr. Justice Martin James
DATE RELEASED: January 31, 2020
COURT FILE NO.: FC-19-FO0001033-0000
DATE: January 31, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jason Parent
- and –
Margo Laroche
RULING ON A MOTION
Mr. Justice Martin James
DATE RELEASED: January 31, 2020