COURT FILE NO.: FS-19-13955

DATE: 20201204

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

AUDREY NICOLA BAILEY-LEWIS

Applicant

– and –

STEVEN LEWIS

Respondent

Lorne Fine, for the Applicant

Fernando Pietramala, for the Respondent

HEARD: December 3, 2020

M. D. FAIETA j.

REASONS FOR DECISION

1The parties began cohabiting in July 1996 and separated on June 1, 2019. The Applicant moved out of the matrimonial home on March 7, 2020 in order to move to North Bay, Ontario for employment purposes. The parties have three children. Two children are adults (ages 27 and 30). The third child, Steven, is 18 years old and resides with the Respondent. Counsel for the Respondent states that Steven has just completed the one remaining course that he needed to graduate from high school. There is no evidence regarding whether Steven intends to pursue a post-secondary education.

2The Applicant mother brings a motion for an order for the sale of the matrimonial home. The Respondent father brings a cross-motion for temporary child support. The Applicant has paid $474 per month since April, 2020 in child support to the Respondent father. She made payment for the last four months of child support just prior to the hearing of this motion. Payment of child support shall continue on a temporary basis until otherwise ordered by this Court. The balance of these reasons addresses whether the matrimonial home should be sold.

BACKGROUND

3The parties are of modest means. The matrimonial home is their main asset. It is only encumbered by a mortgage of about $41,000.00. The main issue in this proceeding is the sale of the matrimonial home. The Applicant wishes to sell the matrimonial home in order that she may use her share of the equity to be a house in North Bay. The Respondent has refused to agree to have the matrimonial home listed for sale. Instead, he would like to purchase the Applicant’s interest in the matrimonial home.

4This Application for Divorce was filed on November 22, 2019.

5A case conference was held on February 20, 2020 before Justice Nishikawa. Each party sought further disclosure and the Respondent expressed an interest in buying the Applicant’s interest in the matrimonial home. The Court ordered that:

• Each party will provide their responses to the disclosure requests on or before March 27, 2020, other than those requests that are disputed.

• The Respondent shall provide proof of qualification for financing on or before March 27, 2020, failing which the Applicant may take steps to move for the sale of the property.

• A Settlement Conference is scheduled for June 8, 2020 at 10:00 am before the Honourable Justice Nishikawa, if available.

6On February 28, 2020 counsel for the Applicant sent an email to counsel for the Respondent requesting: (1) complete copies of his income tax returns from 2016-2018; (2) his bank statements from January 1, 2017 to present; (3) his T4 statements from 2017-2019; (4) information and supporting documentation regarding his union pension including family law value for same; (5) letter of employment from his current employer confirming his salary; (6) his three most recent paystubs; (7) documentation that the Respondent qualifies to refinance the matrimonial home and to purchase the Applicant’s interest including the payment of any equalization payment owing; (8) information and supporting documentation regarding his MLSE pension and all documentation in relation to benefits with his former employer.

7On March 18, 19 and 20, 2020 counsel for the Applicant sent an email attaching various income tax, employment, banking and credit card records to counsel for the Respondent. These documents were also provided to the Respondent’s counsel by a USB key on or about June 3, 2020.

8The Applicant states that she did not proceed with the settlement conference on June 8, 2020 because the Respondent had not provided any of the requested disclosure. This assertion is not disputed.

9By letter dated June 26, 2020, Mr. Pietramala advised that although both parties had indicated in their financial statements that the fair market value of the matrimonial home was $565,000, the Respondent had obtained approval for a mortgage on the basis that the matrimonial home has a value of $470,000.00 based on an appraisal obtained by the prospective lender that was not shared with the Respondent. On that same day, Mr. Fine requested a copy of the Respondent’s mortgage application and supporting documents. These documents have not been provided.

10The Respondent is a baker who earns $50,000 per year. The Respondent states that his mortgage broker requires the “payout figure” in respect of the division of property between the parties in order to provide a mortgage pre-approval letter.

11By letter dated October 28, 2020, Mr. Pietramala sent a letter to the Human Resources Department at MLSE repeating an inquiry that he made on June 25, 2020 related to whether the Respondent was enrolled in any sort of pension plan while he had been employed with MLSE. No response has been received.

12The NFP statement provided by the Respondent shows that he is entitled to an equalization payment of $4,849.33 from the Applicant.

13The Respondent did not express any issue with the disclosure that was provided to him until late October, 2020 when he requested two additional items.

14The Respondent states that he delivered his disclosure brief to the Applicant on October 28, 2020. The Applicant states that the disclosure brief included statements for bank accounts not listed in his financial statement and that it failed to provide disclosure in respect of all of the accounts shown on his financial statement. This is not disputed.

ANALYSIS

15A person with an interest in land has a prima facie right to an order for the partition and sale of a matrimonial home under ss. 2 and 3 of the Partition Act, R.S.O. 1990, c. P.4. A court is required to compel the partition and sale of a matrimonial home unless the opposing party has shown that there is malicious, vexatious, or oppressive conduct on the part of the moving party in relation to the sale itself: Marchese v. Marchese, 2019 ONCA 116, at para. 5.

16The Respondent submits that, while the Applicant will be able to afford the purchase of a house in North Bay, he will not be able to afford to purchase a house in Toronto if the matrimonial home is sold. This consequence of the sale of the matrimonial is not, in itself, a hardship that, in my view, amounts to oppressive conduct by the Applicant: Greenbanktree Power Corp. v. Coinamatic Canada Inc. (2004), 2004 CanLII 48652 (ON CA), 75 O.R. (3d) 478 (C.A.), para. 2.

17Additional considerations apply when a spouse seeks an order for the sale of a matrimonial home prior to the final determination of the spouses’ claims under the Family Law Act, R.S.O. 1990. c. F.3, (“FLA”). In such case, an application under the Partition Act should not proceed when the opposing spouse shows that the sale would prejudice the rights of a spouse under the FLA or a court order (see Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (C.A.), at p. 445; Martin v. Martin (1992), 1992 CanLII 7402 (ON CA), 8 O.R. (3d) 41 (C.A.), at para. 26 or, at the very least, that the opposing spouse’s arguable claims under the FLA would be prejudiced (see Binkley v. Binkley, [1988] O.J. No. 414 (C.A.), at para. 3; Gibson v. Duncan, 2013 ONSC 5377, at paras. 20-23).

18The Respondent further submits that the equalization of property between the parties has not been completed and thus he may be prejudiced by the sale of the matrimonial home. Given that: (1) the Applicant, unlike the Respondent, appears to have made the required financial disclosure; (2) there will be a relatively sizeable amount of equity in the matrimonial home that will be held in trust following the sale, I find that the risk of prejudice to the Respondent is more imagined than real.

19The Respondent further submits that the court must consider the impact of the proposed sale on the child, Stephen: See Fernandes v. Darrigo, 2019 ONSC 1039 (Div.Ct.) paras. 19-21. However, there is no evidence that Stephen is a vulnerable child or that the sale of the matrimonial home would have significant disruptive effects on him.

20While an order for the sale of a matrimonial home prior to trial should not be made as a matter of course, there is no reason not to do so in this case. It appears that the Respondent does not want the property sold on the open market so that he may buy it directly from the Applicant at what appears to be at a discount in order to increase the chances of obtaining financing for its purchase on his modest income. That is not a sufficient reason to oppose this motion particularly as the court-imposed deadline for providing proof of qualification for financing passed more than eight months ago. Given that the Respondent seeks to prevent or delay the sale of the matrimonial home on the open market so that he may continue to try to cobble together financing in order to purchase it, I agree with the Applicant that she should have control over the sale process on certain terms. If the Respondent is able to arrange such financing, then he will be at liberty, like anyone else, to make an offer to purchase the matrimonial home on the open market.

CONCLUSIONS

21I make the following Order:

(1) On a temporary basis, the Applicant shall pay child support in the amount of $475 per month to the Respondent in respect of their son Stephen Keon Lewis, age 18.

(2) The Applicant shall be permitted to select a listing agent for the matrimonial home, municipally known as 104-52 Sidney Belsey Crescent, North York, Ontario, as soon as practicable and may list the matrimonial home for sale after January 3, 2021. All appliances situated in the matrimonial home may be sold with it.

(3) The Applicant shall have the sole authority to negotiate, accept or counter-offer any offer to purchase the matrimonial home.

(4) The Applicant shall have the sole authority to close the sale of the matrimonial home, including signing all documentation, without consultation with or without the consent of the Respondent.

(5) The Respondent’s consent or authority to list and complete the closing of the sale of the matrimonial home, is dispensed with pursuant to section 23 of the FLA with the exception that:

o The Applicant shall, in a timely manner, keep the Respondent apprised of all offers, negotiations and counter-offers between the Applicant and a prospective purchaser;

o The Respondent may provide his views regarding the terms of the proposed marketing and sale of the matrimonial home to the listing agent.

o The listing agent shall provide the parties with a marketing plan and market comparisons and that she will recommend the appropriate listing price; and,

o Should any dispute arise related to the sale of the matrimonial home, the parties may return to have that matter adjudicated by me, in a summary manner, on two day’s notice, if I am available.

(6) The Respondent shall comply with all reasonable requests made by the Applicant for the marketing of the matrimonial home to the extent that those requests comply with the directives and recommendations made by governmental authorities and the Toronto Regional Real Estate Board pertaining to COVID-19.

(7) The net proceeds of sale be held in trust by the real estate solicitor representing the parties on the sale of the matrimonial home pending court order or written agreement of the parties.

22A case conference shall be held on May 19, 2021 at 10 am for the purpose of reviewing the payment of temporary child support, both duration and amount, and any other matter that remains in dispute between the parties.

23In respect of both motions, each party shall deliver their costs submissions, two pages maximum, exclusive of any offers to settle and outline of costs. Any party claiming costs shall do so by December 10, 2020 and any party responding to such claim shall respond by December 17, 2020.