COURT FILE NO.: FC-19-516-0 DATE: 2021/02/10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kim-Khanh Thi Vo, Applicant AND Minh Tran, Respondent

BEFORE: Justice Engelking

COUNSEL: Russel A. Molot, for the Applicant Michael Carey, for the Respondent

HEARD: November 27, 2020

Endorsement

[1] This is the Applicant, Ms. Vo’s motion seeking an order for the sale of a property in which she holds a 50% interest, and for an adjustment of temporary child support for the parties’ three children payable by the Respondent, Mr. Tran.

[2] Mr. Tran has filed a Cross-Motion seeking an order reducing and/or adjusting his child support payments and expunging his arrears of child support. He also seeks an order declaring that a property in his name at 153 Bandelier Way, Kanata, belongs solely to him and “removing the Trust Agreement signed by the parties” at the time of purchase.

[3] The issues in the motion are whether: 1) an order should be made for the sale of the property known municipally as 153 Bandelier Way; and 2) whether there should be a variation of temporary child support, and a suspension of child support arrears.

[4] For the reasons that follow, there shall be an order that 153 Bandelier Way be listed for sale, and there shall be an adjustment of temporary child support, with no suspension of arrears.

Background Facts

[5] The parties met in 2000 and began to cohabit in about 2005. Three children were born of their relationship, Ella in August of 2003, Jayla in June of 2007 and Laila in January of 2011. The parties separated on December 25, 2018.

[6] The children remained in the care of Ms. Vo from the date of separation until the eldest child, Ella, went to live with Mr. Tran on or about August 30, 2020. Ella has continued to reside with Mr. Tran since that date, and Jayla and Laila have remained in the care of Ms. Vo.

[7] At the time of separation, Mr. Tran held two properties in his name alone, known as 382 Brettonwood Ridge, which was the family home, and 153 Bandelier Way, which was an investment property.

[8] The history of the acquisition of the homes is as follows. When the parties commenced cohabiting, they rented a home, for which they each paid rent and they also each put money aside to purchase a home.

[9] In 2008, the parties purchased their first home municipally known as 16 Steggall Crescent in Stittsville, for $283,000. The home was put into Mr. Tran’s name alone because Ms. Vo was unable to qualify for financing at the time.

[10] For the purchase of 16 Steggall, Mr. Tran paid an initial deposit of $5,000 and Ms. Vo borrowed $82,000 from her sister and contributed the balance of the down payment from her savings. The remainder of the purchase price, land transfer tax and legal fees was financed by a mortgage of $203,760 from Home Trust.

[11] Ms. Vo, who worked in a chip wagon, then used her income to cover household expenses such as food, clothing and various utilities, while Mr. Tran put his money into the mortgage, often working extra hours to build up the equity in the home.

[12] In April of 2013, Mr. Tran refinanced the home with the Toronto-Dominion Bank (“TD Bank”) with a mortgage of $127,000. The parties had paid more than $60,000 in principle over five years.

[13] On June 26, 2014, the parties sold 16 Steggall Crescent for $394,999. There was approximately $115,000 still owing on the mortgage, and the parties used all of the remaining equity in the home, or approximately $280,000, to purchase 382 Brettonwood Ridge, which was purchased for $381,000. This property was also registered in Mr. Tran’s name alone. A mortgage was obtained on this property for $164,000.

[14] In April of 2015, a new mortgage was registered on title of Brettonwood for $150,000 with the TD Bank. Ms. Vo was unaware of this mortgage until her counsel did a title search of it in preparation of a motion for a Certificate of Pending Litigation to prevent an unauthorized sale shortly after separation.

[15] Prior to separation, in 2018, Mr. Tran wanted to buy an investment property to rent out and the parties agreed to use the equity in 382 Brettonwood to purchase another home at 153 Bandelier Way for $290,338. The Brettonwood property was refinanced with the mortgage being increased to $300,000. On closing date, Ms. Vo provided Mr. Tran with a cheque for $24,000 to cover the costs of HST payable on the investment property (a new build) and other closing costs.

[16] Mr. Tran again wanted the title of the home to be in his name alone, however the real estate lawyer acting for the parties was not prepared to complete the closing unless Ms. Vo’s rights were protected. A trust agreement was drafted by Mr. Hedges and executed by the parties granting Ms. Vo a 50% interest in the property notwithstanding that she was not registered on the title. The Trust Agreement is dated August 28, 2018 and is attached as Exhibit “K” to Ms. Vo’s affidavit sworn on October 13, 2020.

[17] After the purchase, Mr. Tran entered into a lease with a tenant which provided for a monthly rental of the property of $1,850. Ms. Vo has never received her 50% interest in any rental income Mr. Tran received on this property.

[18] Also after the purchase of 153 Bandelier Way, Mr. Tran requested money from Ms. Vo to assist him with expenses relating to his stock portfolio and to make payments on his credit card. She provided him with bank drafts on June 5, 2018 for $5,000, June 25, 2018 for $10,000 and September 27, 2018 for $4,000. Ms. Vo also paid a neighbour $369 for her 50% share of a fence erected on the property.

[19] Ms. Vo also paid a total of $7,241.86 in the property taxes for the Brettonwood property in 2017 and 2018.

[20] After separation, Ms. Vo learned of Mr. Tran attempting to list 382 Brettonwood Ridge for sale without her knowledge. She brought a motion and obtained an order from Justice Kane dated April 4, 2019 for a Certificate of Pending Litigation to be placed on the property. Ultimately, the parties agreed to sell the house on consent. Each received $30,000 from the net proceeds of the sale, with the balance being held in trust by Mr. Tran’s solicitor pending a determination of Ms. Vo’s interest in them based on the trust claims made in her original application.

[21] After the sale of the Brettonwood property, Mr. Tran moved into the Bandelier property. Ms. Vo, on the other hand, has been living in a rental property since separation. She now seeks an order for the sale of 153 Bandelier Way so that she can recover her 50% interest in it.

[22] She also seeks a temporary order varying the child support payable by Mr. Tran. On May 22, 2019, at a Case Conference, Justice Summers made an order on consent that Mr. Tran was to pay $2,000 per month in support of the three children of the relationship based on his 2018 income of $84,761 on a without prejudice basis. According to Ms. Vo, this was a compromise position, as the DivorceMate calculation for three children on Mr. Tran’s income, with extraordinary expenses, resulted in a monthly child support payment of $2,339. The support was to be enforced by the Family Responsibility Office (“FRO”), and disclosure was also ordered to be provided by both parties.

[23] Mr. Tran paid Ms. Vo $2,000 in June of 2019 and $2,000 in July of 2019. On August 30, 2019, Mr. Tran’s present lawyer sent a letter to Ms. Vo’s counsel advising that “the sum of $2000 per month which he has been paying is too much”, and enclosed two unsigned cheques of $500 for September 1 and October 1, 2019 respectively, which were returned by Ms. Vo to Mr. Tran’s lawyer’s office. As of October 6, 2020, Mr. Tran was in arrears of his child support payment with FRO in the sum of $10,823,60.

[24] Ms. Vo now seeks a set-off order based on Mr. Tran’s 2018 income, and on the fact that Ella resides with Mr. Tran, effective as of September 1, 2020. She also seeks an order for Mr. Tran to pay his monthly share of the children’s extra-ordinary expenses.

[25] Mr. Tran works as a patient aid worker at the Queensway Carleton Hospital. According to his 2018 Notice of Assessment, Mr. Tran’s income was $84,395. Mr. Tran, however, submits that his subsequent income has been much lower than that and that he has not been working as much. Mr. Tran states in his affidavit in support of this motion that he is “currently earning $74,308.14”.

[26] Mr. Tran indicated in his affidavit sworn on October 5, 2020 that he also works as an Uber driver. However, his Financial Statement sworn on October 5, 2020 contains no information as to the income he receives from this endeavor. Although Mr. Tran checked the boxes on the Financial Statement which indicate that he has attached his most recent pay cheque stub and his income tax returns for the three previous years, no such documents are attached. Mr. Tran did, however, separately file his T4 for 2019 from the Queensway Carleton Hospital which indicates his income was $74,308.14. As well, Ms. Vo’s materials contained copies of Mr. Tran’s Notices of Assessment for the years 2016 to 2018, which demonstrate that his income was $80,786 in 2016, 75,584 in 2017 and $84,395 in 2018.

[27] Ms. Vo’s position is that Mr. Tran’s income having reduced since 2018 is untenable, particularly currently given that Mr. Tran is a hospital worker and the demand for same has been and remains high during the COVID-19 pandemic.

[28] According to Ms. Vo’s Notice of Assessment for 2019, her income was $50,052. She is a real estate agent, but submits that due to the separation and her responsibilities for the girls, including in relation to obtaining housing and in respect of their educations, she was unable to work as much as she might have otherwise done.

Analysis

153 Bandelier Way

[29] There is clear jurisdiction under the Partition Act, R.S.O. 1990, Chapter P.4 to order the sale of jointly owned property prior to trial. However, an order for directing the sale of a matrimonial home before trial should only be made where, in all the circumstances, it is appropriate to do so. Additionally, an application for partition and sale should not proceed where it would prejudice the rights of either spouse under the Family Law Act (Martin v. Martin; Silva v. Silva).

[30] In this case, 153 Bandelier Way is neither a jointly owned property nor is it the matrimonial home. Nevertheless, Ms. Vo seeks an order for the sale of the Bandelier property based on her 50% interest arising from the Trust Agreement entered into the parties on August 28, 2018, a copy of which is attached as Exhibit “K” to Ms. Vo’s affidavit sworn on October 13, 2020.

[31] The “Acknowledgement of Trust” provides that the transferee of 153 Bandelier Way, Mr. Tran, is holding the property in trust for the beneficial owners, Minh Thein Tran (50%) and Kim Vo (50%). Handwritten next to the named beneficiaries are the words “AS JOINT TENANTS”, however, this addition is not initialed by the parties. The Acknowledgement nevertheless goes on to state:

1. I hereby acknowledge and confirm that the interest in the said lands is held for and solely on behalf of the beneficiaries.
2. I covenant and agree not to do any act or thing, or institute any action or proceedings of any nature, without having first obtained the consent and authorization of the beneficiaries herein.
3. This Acknowledgement of Trust shall be binding upon and enure to the benefit of the respective heirs, executors, administrators, successors and assignees of the beneficiaries and myself.

[32] The parties acknowledged on the document that they waived independent legal advice, understand their respective rights and obligations, understand the nature and effect of the agreement, understand that the provisions of it are equitable and are signing voluntarily. The document is signed by both parties, whose signatures are witnessed.

[33] Although Mr. Tran has requested an order in his Notice of Cross-Motion “declaring that the real property owned by the Respondent being 153 Bandelier Way, Kanata, Ontario, belongs solely to the Respondent and removing the Trust Agreement signed by the parties at the time of purchasing the real property, being legally described as Part Block 260, Plan 4M1597, Part 4 on Plan 4R-31308”, he does not provide any evidence to the court in relation thereto, nor has he provided any legal argument to support his request for this relief. To “remove” or essentially set aside the trust agreement, which Mr. Tran acknowledged was voluntarily entered into, would require both evidence as to why it should be set aside, and some basis in law to do so. Having neither, I dismiss Mr. Tran’s request for such a declaratory order.

[34] Sections 2 and 3(1) of the Partition Act, R.S.O. 1990, Chapter P.4 provide, under the title “Who may be compelled to make partition or sale”:

2 All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.

3 (1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.

[35] By virtue of the Acknowledgement of Trust dated August 28, 2018, Ms. Vo is most definitely a “person interested in” 153 Bandelier Way, and is a person who, by virtue of that interest, has the ability to bring an application to the court to have the property listed for sale.

[36] In Brienza v. Brienza, 2014 ONSC 6942, Justice Perell indicated at paragraphs 22 through 25:

[22] Section 2 of the Partition Act states that a joint tenant or tenant in common may be compelled to make or suffer partition or sale. The general principles to determine when partition and sale should be granted were laid down in Davis v. Davis, [1954] O.R. 23 (C.A.), where the Court of Appeal stated:

There continues to be a prima facie right of a joint tenant to partition of sale of lands. There is a corresponding obligation on a joint tenant to permit partition or sale, and finally the Court should compel such partition or sale if no sufficient reason appears why such an order should not be made.

[23] The onus is on the party resisting partition or sale to demonstrate sufficient reasons for refusal: Davis v. Davis, supra; Silva v. Bettencourt, [2002] O.J. No. 1878 (S.C.J.).

[24] In cases after Davis, the Act has been interpreted to mean that the court has a very limited discretion to refuse an application for partition or sale: Silva v. Silva, [1990] O.J. No. 2183, supra; Hay v. Gooderham (1979), 24 O.R. (2d) 701 (Div. Ct.); Garfella Apartments Inc. v. Chouduri, 2010 ONSC 3413, [2010] O.J. No. 2900 (Div. Ct.).

[25] Only in exceptional circumstances will a joint tenant or tenant in common be denied his or her request that the property be partitioned or sold. The court’s discretion to refuse partition and sale is narrow, and there must be malicious, vexatious or oppressive conduct to justify the refusal to grant partition and sale: Silva v. Silva, supra; Osborne v. Myette, [2004] O.J. No. 3383 (S.C.J.); Latcham v. Latcham, [2002] O.J. No. 2126 (C.A.), affg. [2001] O.J. No. 5291 (Div. Ct.); Fellows v. Lunkenheimer (1998), 21 R.P.R. (3d) 142 (Ont. Gen. Div.); Kalita v. Freskiw Estate, [1998] O. J. No 5180 (Gen Div.); Jakubiszyn v. Tekielak, [1991] O.J. No. 2362 (Gen. Div.); Garfella Apartments Inc. v. Chouduri, supra.

[37] “No sufficient reason as to why such an order should not be made” has been provided in this case. Thus, there shall be an order for the sale of 153 Bandelier Way.

Child Support

[38] Ms. Vo is entitled to child support for the two children in her care, and Mr. Tran is entitled to child support for the child in his care. Based on Ella having moved to reside with Mr. Tran at the end of August 2020, I am prepared to make a new temporary order for child support commencing September 1, 2020.

[39] The only issue is what the parties’ respective incomes are for child support purposes. Mr. Tran seeks to have an order based on his 2019 income as evinced by his T4 for the Queensway Carleton Hospital, while Ms. Vo seeks for Mr. Tran’s income to be as per his 2018 Notice of Assessment. Ms. Vo submits that Mr. Tran has provided no reasonable explanation for a reduction in his income from $84,395 in 2018 to $74,308.14 in 2019. Mr. Tran has not provided disclosure to Ms. Vo or the court of his 2019 Income Tax Return or any Notice of Assessment/Re-Assessment. Additionally, while Mr. Tran indicated in his affidavit that he also works as an Uber driver, he has provided no disclosure to Ms. Vo or the court of the income he makes from that endeavor.

[40] The only information that Mr. Tran provides in his affidavit in support of the motion is at paragraph 4 wherein he states: “I am guaranteed three shifts every two weeks as part of my set schedule. I am also available to pick up shifts and on call shifts. My shift work can vary in regard to the number of hours worked and the time of day I work. I also work as an Uber driver.”

[41] The evidence of Ms. Vo is that throughout the relationship, Mr. Tran worked long hours and did many overtime shifts in his effort to put money towards paying down the mortgages on their various homes. In paragraph 21 of his affidavit of October 5, 2020, Mr. Tran disputes that Ms. Vo paid any “large sums of money into the mortgages on our property”, and states that he has further had to pay down her credit cards, though again Mr. Tran provides no documentation to support either claim. [1] Whether this is accurate or not, it seems to support Ms. Vo’s position that Mr. Tran is capable of picking up extra shifts or working overtime such that he can make at least as much as he did in 2018.

[42] Mr. Tran has re-partnered, and his new spouse had a child in August of 2020. However, there is nothing in the evidence to suggest that Mr. Tran has taken any leave which would have the effect of reducing his income currently either.

[43] Ms. Vo seeks to impute income to Mr. Tran at his 2018 level. The onus is, of course on her to demonstrate that Mr. Tran is under-employed. However, she relies on the cases of McGillan v. Burdney, [2004] O.J. No. 2210 (C.J.) and Duffy v. Duffy, 2009 NLCA 48, [2009] NJ. 24. In McGillan, the court emphasized at paragraph 16 that it must consider not only what a spouse actually earns, but the amount of income a spouse would earn if working to capacity. In Duffy, the court set out at paragraph 35 a list of the general principles regarding financial support of children under the Federal Child Support Guidelines, number 6 of which is: “Where a parent is intentionally under-employed or unemployed, the court may exercise its discretion not to impute income where that parent establishes the reasonableness of his or her decision.” Number 8 of the principles outlined by the Newfoundland Court of Appeal in Duffy, additionally, is: “A parent must provide proper and full disclosure of financial information. Failure to do so may result in the court drawing an adverse inference and imputing income.”

[44] Just as he did not provide Ms. Vo with any disclosure of the rent he received for 153 Bandelier Way prior to moving in himself, Mr. Tran has not provided any disclosure of income he may have received driving for Uber, from his rental property or of his 2019 Income Tax Return and Notice of Assessment or Re-Assessment. Based on his failure to do so, the court cannot come to the conclusion that his T4 for the Queensway Carleton Hospital evinces that this was his only income in 2019. It does not account for the rent Mr. Tran received for 153 Bandelier from January to August of 2019, let alone income he may have received from Uber. Even if I was satisfied that his income from the Queensway Carleton Hospital was Mr. Tran’s only income for 2019, I cannot conclude that it is reasonable that he made $10,000 less in 2019 than he did in 2018 from the same job. I am, therefore, prepared to impute income to Mr. Tran of $84,395 for the purposes of child support.

[45] As with his request for declaratory relief, while Mr. Tran has requested an order “Expunging the arrears of child support owing by the Respondent to $000.00”, he provides the court with absolutely no evidence upon which to base such an order. Mr. Tran simply says in paragraph 11 of his affidavit that he “cannot afford to pay the child support which [he] is currently ordered to pay”. He also says in paragraph 6 that he has been paying $2,000 per month “for the benefit of the children” since the date of separation, which is clearly not the case. First, the parties separated in December of 2018, and the order of Justice Summers for support commenced in June of 2019. Second, as is evinced by his counsel’s letter dated August 30, 2019, Mr. Tran unilaterally decided that the order was for too much and provided two (unsigned) cheques of $500 each for September and October. Third, Mr. Tran is currently in arrears with FRO (or was as of October 6, 2020) in the amount of $10,823,60. Notwithstanding the order of the court, he has not been paying support of $2,000 per month. Nor did he take any steps to seek to change the existing temporary order prior to Ms. Vo bringing this motion. He simply stopped paying it. This is something which the court cannot and will not condone. Having no basis upon which to order it, Mr. Tran’s request for an order expunging his arrears is dismissed.

[46] Having said that, there is clearly an adjustment to child support which needs to be made as of September 1, 2020. Ms. Vo, additionally, is seeking an order for Mr. Tran to contribute to extra-ordinary expenses for the girls. She has included at Exhibit “Y” to her affidavit receipts for $5,415 for dance classes, $1,008 for piano lessons from January to May of 2019 and $166.33 for books, and $2,200 for psychotherapy for Jayla and Laila. The total is $8,789.33. I am not satisfied, however, of the necessity of expenses for piano and dance taking into consideration the reasonableness of the expense and the means of the parents such that I would grant an order requiring Mr. Tran to contribute to them on a temporary basis. He shall, however, be required to contribute a proportionate share of the children’s psychotherapy.

[47] Mr. Tran’s affidavit also spoke of wanting an order for access to the children, however, he did not request same in his Notice of Cross-Motion, nor was there any specificity to either his request or his evidence. I have, thus, not dealt with that issue in this endorsement.

Order

[48] For all of the reasons given above, there shall be an order as follows:

1. There shall be an immediate sale of the property located at 153 Bandelier Way, Kanata, Ontario;
2. Proceeds of the sale shall be divided equally between the parties, after all costs related to the sale and the discharge of the mortgage have been attended to;
3. If the parties are unable to agree on the arrangements for the sale, a further appearance before me may be arranged through the office of the Trial Coordinator;
4. Commencing September 1, 2020, Ms. Vo shall pay to Mr. Tran child support for Ella Tran, born August 13, 2006 in the sum of $461 per month, being the Federal Child Support Guidelines table amount for one child on an annual income of $50,052;
5. Commencing September 1, 2020, Mr. Tran shall pay to Ms. Vo child support for Jayla Tran, born June 28, 2007 and Laila Tran, born January 11, 2011 in the sum of $1,276 per month, being the Federal Child Support Guidelines table amount for two children on an annual income of $84,395;
6. The result is that Mr. Tran shall pay to Ms. Vo a set-off amount of child support of $815 per month;
7. Mr. Tran shall pay to Ms. Vo the sum of $1,386 being his 63% share of the psychotherapy costs for Jayla and Laila Tran. This order is without prejudice to Ms. Vo to seek other or future contributions from Mr. Tran for extraordinary expenses for the girls; and,
8. The Family Responsibility Office shall adjust the amounts owing by Mr. Tran in accordance with this order.

Costs

[49] If the parties are unable to agree on liability for the costs of this motion by March 1, 2021, they may make written submissions of no more than three pages, along with copies of their Bills of Costs and Offers to Settle, to me at intervals of 10 days from that date and I will make an order.

Justice Engelking Date: February 10, 2021

Footnotes

[1] Ms. Vo, on the other hand, provided documents to support all of the facts outlined in the “Background Facts” above.