Court File and Parties

COURT FILE NO.: FS 19-144 DATE: 2021/02/08 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tracy Lee Degagne, Applicant AND: Olivier Jules Joseph Paquette, Respondent

BEFORE: M.G. Ellies R.S.J.

COUNSEL: S. Sikora, for the Applicant Respondent, self-represented

HEARD: February 5, 2021

Endorsement

[1] The applicant moves for an order for partition and sale of a 61-acre property she owns jointly with the respondent. The property is a rural one, located between North Bay and Sudbury.

[2] The respondent opposes the request. He makes five arguments against it, none of which I find persuasive. I will start with the background facts before moving to those arguments.

[3] The parties were married in 2008. They separated in 2017. They have four children. The oldest child is now 12 years old. The youngest is six. The children reside with the applicant.

[4] In addition to owning the subject property jointly with the applicant, the respondent is the sole owner of four other rural properties. While they were together, the parties lived in a residence on one of them. After the second child was born, the respondent quit his job as a mechanic working for a Sudbury mining company and began to farm hay on three of the other properties, including the property that is the subject of this motion. For her part, the applicant began to operate a business in a greenhouse located on the fourth property (“the greenhouse property”).

[5] Following the separation, the applicant brought an application for custody, access, and support in the Ontario Court of Justice. The respondent failed to participate fully in that proceeding. In May 2019, the applicant obtained a default order for custody of the children and for child support payable by the respondent in the amount of $1,072 per month. Although the order was made in May, it was not formalized until December of the same year. According to the respondent it did not come to his attention until then.

[6] Very little has been paid under the order, and none of it voluntarily, according to the applicant. The order was filed with the Family Responsibility Office (“FRO”) for enforcement under the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31. All they have been able to obtain from the respondent is whatever they have been able to divert from him by way of government tax benefits, such as GST/HST rebates. The amount owing under the order is over $25,000.

[7] After the parties separated, the applicant began to live with the parties’ four children in a residence located on the greenhouse property. According to her evidence, she could no longer afford to operate the greenhouse business, so she found a salaried job in 2018 with a North Bay employer. Her income was enough to allow her to maintain the property and pay all the bills, with the exception of the mortgage, which was in the respondent’s name.

[8] The respondent has had difficulty with the separation. In August 2019, he was charged with threatening the applicant and the children. A few days after he was charged with those offences, he was also charged with breaching the terms of his release by communicating with the children. Those charges remain outstanding.

[9] In September 2019, the applicant commenced an application in the Superior Court within which this motion is brought. In the application, she seeks a divorce, equalization of net family property, and partition and sale.

[10] In January 2020, the applicant was served with a notice of sale under the mortgage on the greenhouse property. She brought this motion in February 2020 seeking to sell the property, based on her concern that it would be sold for less than its fair market value if sold under power of sale. The applicant was unable to serve the respondent and so had to obtain an order for substitutional service in March. The motion was scheduled to be argued in April, but was adjourned without a fixed date at that time due to COVID-19.

[11] When she was first served with the notice of sale, the applicant did what she could to try to keep the greenhouse property, but eventually gave up on the idea. She and the children left the property after she bought a home in North Bay in December 2020. The status of the greenhouse property is not known.

[12] This motion was brought back on for a hearing in January 2021. In the motion, the applicant seeks an order for partition and sale of all of the respondent’s properties. However, during argument, counsel conceded that her client would have difficulty obtaining such an order with respect to those properties owned solely by the respondent and the motion proceeded only with respect to the jointly owned property.

[13] The respondent filed nothing in response to the motion. Accordingly, he was granted an adjournment on the first hearing date and ordered to file both a financial statement in Form 13.1 and a responding affidavit, which he did. However, the financial statement is completely blank, with the exception of a statement that the respondent earned $23,940 last year, which is supported only by a handwritten note breaking that figure down on a monthly basis. The affidavit is two pages long, says nothing relevant to the request for partition and sale, and is accompanied by 200-300 pages of documents, the relevance of most of which is tenuous, at best.

[14] While the applicant’s materials do not suffer from these flaws, the motion does suffer from two procedural flaws. The first is quite minor. The application itself does not specifically request that this parcel of land be partitioned and sold. Instead, it asks that the property located at 10465 Highway 17 be sold, which I understand is the municipal address of the matrimonial home. However, the subject property is located next to the matrimonial home. As best I can tell, it has no municipal address of its own. The notice of motion refers to it as “10777 Highway 17 PCL 28740”. It would have been preferrable to use this identifier in the application, as well. Nonetheless, there is no doubt that the respondent was aware from the beginning that this is the property the applicant seeks to sell.

[15] The second procedural flaw is more significant. The motion has not been brought as a motion for summary judgment: Partition Act, R.S.O. 1990, c. P.4, s. 3; Rainville v. Walsh, 2021 ONSC 446, at para. 12. However, I do not believe that anything would be accomplished by denying the motion on that basis, for four reasons. First, I doubt that any new or different evidence would be filed on the summary judgment motion. The applicant’s materials are complete and its seems that the respondent has filed copies of just about every document he believes may be important in the case. Second, during the hearing, I gave the parties wide latitude in making their submissions to refer to matters not in evidence. I did this because the respondent was self-represented. Third, to delay the proceedings in these circumstances would violate the primary objective of dealing with cases justly, set out in r. 2(2) of the Family Law Rules, O. Reg. 114/99. It would only add delay to the proceedings to require that the notice of motion be amended. And finally, on the evidence that I do have, I am able to decide this motion without having to resort to the additional fact-finding powers only available to me under the summary judgment provisions of r. 16 of the Family Law Rules. I turn now to the respondent’s arguments.

[16] The respondent opposes the sale for five reasons. I will deal with each separately.

[17] First, the respondent argues that the applicant has perjured herself in her sworn materials. He has failed to establish this. I will address the two most serious accusations.

[18] The applicant deposed that her lawyer in the Ontario Court proceedings (not the same lawyer as in the Superior Court proceedings) tried to get the respondent to cooperate by signing documents that would allow the applicant to take over the mortgage on the greenhouse property, but the respondent failed to respond. During argument, the respondent said that he never talked to the lawyer and there must be no written communication, or it would be appended to the applicant’s affidavit. The main problem with this argument is that it was made for the first time during the hearing. The applicant never had a chance to submit evidence to refute it. It would be unfair to accept the respondent’s unsworn evidence over the applicant’s sworn evidence in these circumstances.

[19] The respondent also points to the fact that the applicant deposes she received information from the lawyers acting for the mortgage holder on the greenhouse property on two occasions and submits that the lawyers were only given permission to provide information to her on one occasion. However, as counsel for the applicant points out, an order was made at a case conference the respondent failed to attend (despite being served with the case conference notice,) at which the judge ordered that the applicant was entitled to receive information from the mortgagee’s lawyers.

[20] There is no merit to any of the allegations of perjury.

[21] The respondent also contends that subject property is not worth what the applicant says it is. He says that there are problems with the property itself, such as highway access issues, and that there will also be an automatic levy against the property relating to drainage issues that I surmise must refer to proceedings under the Drainage Act, R.S.O. 1990, c. D.7.

[22] Again, there is no evidence to support these submissions. In fact, the evidence is to the contrary. The applicant has appended a copy of the PIN information relating to the property to a recent affidavit. It shows that the only charge against the property is the lien filed by FRO. As well, she has filed a recent appraisal of the property, showing the value at $95,000.

[23] The respondent’s third argument is that the arrears under the support order are much less than the amount alleged. He contends that the order is suspended during any period in which his annual income dips below $15,000. He maintains that, because he was prohibited from being near the applicant and the children due to the terms of his release order, he has not been able to earn income from farming. As a result, he says that his income fell below the $15,000 threshold.

[24] Again, this argument is contradicted by the evidence. The only information contained in the respondent’s financial statement is that he made more than $15,000 last year. This argument is also not supported by any law of which I am aware. I agree with counsel for the applicant that, if the respondent is referring to the base amount for paying child support set out in the Child Support Guidelines, the amount is less than $15,000 and does not result in an automatic suspension of any support order based on a higher amount. The onus is on the respondent to apply to vary the order in those circumstances. He has not done so.

[25] Fourthly, the respondent contends that the property should not be sold because the applicant is likely going to end up owing him money once their net family property is equalized. Like the respondent’s other arguments, this one is also contradicted by the evidence. The respondent owns all of property I have mentioned, whereas the applicant owns only her house and an undivided half-interest in the subject property. While the applicant acknowledges that there are debts owing against the respondent’s properties, the respondent has provided no details about his financial situation in his financial statement. As the evidence stands, I cannot conclude that the applicant will end up owing the respondent any money.

[26] Finally, the respondent argues that ordering the partition and sale of the subject property will work a hardship on him, as he will not be able to use the property to farm and, therefore, will not be able to use it to earn income. However, the evidence shows that the hardship that the applicant would suffer if the property were not sold far outweighs the hardship that might result to the respondent if it were.

[27] During the hearing, I questioned the respondent about how much money he might expect to make farming, now that he is no longer restricted from doing so by the terms of his release order (because the applicant has moved away). He answered that he made $40,000 to $45,000 when he was able to farm all of his properties. However, he also said that his actual income is probably less than that because the family’s accountant recommended that he claim income earned by the applicant from the greenhouse business, in order to allow her to claim the child tax credits.

[28] I also questioned the respondent about how much hay he was able to grow on each property. According to the respondent, whereas all of the 61 acres comprising the subject property are farmable, not all of the other properties are as fit for agriculture. He says that of the 157 acres comprising one of the properties, only about 40 acres are farmable. Of the property on which the matrimonial home is located, only about 25 acres are farmable. Of the property consisting of 160 acres, he says only about 40 and another possibly 20 acres are farmable. Although I have a hard time accepting this, even if I do, the 61 acre parcel accounts for less than half of the total farmable land owned by the respondent. This equates, at best, to about $20,000 of income per year. That is not significant enough, in my view, to deprive the applicant of her interest in the property.

[29] More importantly, of this income, the applicant will get absolutely nothing. As the respondent candidly admitted during argument, he will voluntarily start paying child support when he gets access to the children.

[30] For these reasons, the motion is allowed. An order shall issue for partition and sale of the property identified as 10777 Highway 17 PCL 28740.

[31] The applicant shall file a draft order in Word format using the courthouse’s generic email address.

[32] The applicant was successful in her motion and I see no reason why she should not be awarded her costs. The parties shall serve and file written costs submissions, as follows:

(1) By the applicant, within 15 days of the release of this endorsement, limited to five typewritten pages, excluding attachments. (2) By the respondent, within 10 days of receiving the applicant’s submissions. The respondent’s submissions shall be similarly limited in length. (3) By the applicant in reply, if necessary, within 10 days of receiving the respondent’s submissions, limited to two typewritten pages, excluding attachments.

[33] Submissions made outside of these timelines will not be considered.

M.G. Ellies R.S.J. Date: February 8, 2021