Court File and Parties

Court File No.: 78/20 Date: 2021-03-17 Ontario Superior Court of Justice

Between: Lisa Ann Smith, Applicant – and – Kevin Reginald Smith, Respondent

Counsel: Monica Scholz, for the Applicant Lydia Moritz, for the Respondent

Heard: February 24 and 25, 2021 Before: The Honourable Madam Justice Deborah L. Chappel

Reasons for Judgment

PART 1: INTRODUCTION

[1] On February 24 and 25, 2021, I heard three motions in this proceeding and reserved judgment. These are my Reasons in relation to those motions.

[2] The Applicant and Respondent were married on September 20, 1980 and separated on June 19, 2019. For ease of reference, I will refer to them as “Lisa” and “Kevin” respectively in these Reasons. There are three children of the parties’ relationship, namely Taran Marlow Smith, born December 10, 1984, Amy Lisa Smith, born November 17, 1986, and Connor Brandon Smith, born June 12, 1992. All of the children of the relationship are now adults and living independently. Lisa commenced this Family Law application on February 11, 2020. She has advanced numerous claims including requests for spousal support, a restraining order, equalization of net family properties, exclusive possession of the matrimonial home, sale of family property, security for spousal support and an order requiring the Respondent to maintain her as a beneficiary under his medical and health benefits plan or a comparable plan.

[3] The first motion before the court is that of Lisa, which was originally returnable on December 16, 2020. In this motion, Lisa requests an order permitting her to amend her application as follows:

1. First, she seeks permission to advance claims pursuant to section 34 of the Family Law Act, R.S.O. 1990, c. F-3 as am. During the hearing, her counsel clarified that she seeks leave to amend to indicate that she is requesting spousal support on a periodic and/or lump sum basis, and to request an order that property be transferred to or in trust for or vested in her to satisfy any support order that may be made in her favour.

2. Second, Lisa requests leave to add a claim for a declaration that she is the beneficial joint owner of a cottage lot on Whitestone Lake which is currently registered in Kevin’s sole name. This lot is adjacent to a cottage property on Whitestone Lake which is held jointly by both parties. For ease of reference, I will refer to the jointly held cottage property as “the cottage property” and to the adjacent lot that is registered in Kevin’s sole name as “Kevin’s lot.”

[4] Kevin’s counsel, Ms. Moritz, advised during the hearing that Kevin consents to an order permitting Lisa to amend her application to clarify that she is seeking spousal support on a periodic and/or lump sum basis. However, Kevin opposes the other amendments.

[5] Lisa has a second motion before the court, which was originally returnable on February 3, 2021. In this motion, she requests the following relief:

1. An order dispensing with the need for the consent or participation of Kevin in relation to the marketing and sale of the matrimonial home located at 41 Rosedale Street, Grimsby, Ontario (“the matrimonial home”) and the cottage property;

2. An order requiring that Kevin forthwith release sufficient funds from the business operating account of the parties’ jointly owned business, Naturally Gas Limited, (“NGL”) so that she can retain a certified business valuator to value the business and carry out an income for support analysis; and

3. An order requiring Kevin to sign authorizations and directions to banks, credit card companies and any other third parties connected with the affairs of NGL to speak with and release information directly to the Applicant’s certified business valuator for the purposes of completing the business valuation and income for support analysis.

[6] The parties resolved the issues raised in paragraphs (2) and (3) above during the course of the hearing on February 25, 2021, and I made an order on that date pursuant to Minutes of Settlement executed by both of them which disposed of those issues.

[7] The final motion before me is that of Kevin, which was also originally returnable on February 3, 2021. He seeks the following relief:

1. An order that Zoi Ouzas of Remax Garden Realty Inc. be the listing agent for the sale of the matrimonial home;

2. An order that the listing for sale of the cottage property be postponed until at least April 15, 2021;

3. An order that the parties may each receive a dividend payment in the amount of $20,000.00 from NGL; and

4. An order permitting Kevin to dispose of used motors and parts belonging to NGL which are located in the garage and shed located at the matrimonial home.

[8] The Minutes of Settlement that the parties executed on February 25, 2021 and my order of that date disposed of the relief set out subparagraph (3) above.

[9] For the reasons that follow, I make the following orders:

1. I am granting Lisa’s request for leave to amend her application to request both lump sum and periodic spousal support, and an order that property be transferred to or in trust for or vested in her to satisfy any support order that may be made in her favour.

2. I am dismissing Lisa’s request for an order dispensing with the need for the consent or participation of Kevin in relation to the marketing and sale of the matrimonial home and the cottage property.

3. I am dismissing Kevin’s request for an order that the matrimonial home be listed for sale with Zoi Ouzas, and I am directing that the house be listed for sale with William Marlow. I am also ordering that the parties obtain an updated opinion from Mr. Marlow regarding the appropriate listing price for the property forthwith, and that the parties list the house for sale within two days of obtaining this opinion.

4. I am granting Kevin’s request for an order that the listing for sale of the cottage property be postponed.

5. I am making an order respecting the storage and removal of the used motors and parts belonging to NGL that balances the need for these items to be removed from the matrimonial home prior to any closing date and the importance of ensuring that they are properly valued prior to their disposal.

6. Finally, I am adjourning Lisa’s request to amend her application to advance a declaration that she is the beneficial 50% owner of Kevin’s lot, and the question of the timing of the sale of the cottage property, for further argument. I am requiring Lisa to serve and file a draft amended application setting out the specifics of and material facts in support of the trust claim by no later than March 25, 2021.

PART 2: THE LITIGATION BACKGROUND

[10] The litigation background and previous orders made to date are relevant to the issues to be determined in the motions before me. Unfortunately, there have already been several motions in this matter. Lisa brought the first motion, which was originally returnable on July 21, 2020. She sought orders aimed at restoring her rights to full access to the financial operations of the parties’ jointly owned business, NGL, and full participation in the business, as well as a non-depletion order against Kevin. In addition, she requested an order granting her possession of a vehicle and exclusive possession of the matrimonial home. The motion was adjourned to a case conference on September 2, 2020, at which time it was scheduled for a hearing. Following the case conference, Kevin brought a motion seeking an order for the sale of the jointly owned matrimonial home. The Applicant responded with a third motion, seeking an order that if the matrimonial home was ordered to be sold, the parties’ jointly owned cottage property also be listed for sale. Lococo J. heard all three motions on October 23, 2020. Although Kevin had opposed the request to sell the cottage property, he decided on the date of the hearing to consent to an order that it be sold. Lococo J. released his Reasons for Judgment on the remaining issues on November 10, 2020. He ordered as follows:

1. He dismissed Lisa’s requests for a non-depletion order, for an order restoring the financial status quo respecting NGL that existed prior to separation and for exclusive possession of the matrimonial home.

2. He ordered that the matrimonial home and cottage property be listed for sale and sold. The parties were directed to cooperate in the listing and sale. Lococo J. ordered that either party could bring a further motion for directions relating to the properties’ listing and sale, to the extent necessary.

3. He ordered that Kevin continue to pay the expenses associated with the matrimonial home, with the exception of the Cogeco bill.

4. He made an order for disclosure by both parties.

[11] The case proceeded to a settlement conference before MacPherson J. on November 24, 2020. During the settlement conference, the parties addressed numerous issues relating to the sale of the matrimonial home and the cottage property, including the listing agents for each. With respect to the matrimonial home, Lisa proposed Wendy Murray Nicholson as the listing agent. Kevin did not agree, as Ms. Nicholson was an acquaintance of Lisa’s mother and he did not feel that she would be a neutral party. Kevin proposed two other agents, including Ms. Zoi Ouzas, but Lisa did not agree to those agents. In the end, MacPherson J. made an order that the matrimonial home be listed for sale by a real estate agent other than Wendy Murray Nicholson, to be chosen by Lisa. Kevin states that he consented to this term in order to move the issue forward and avoid further cost and delay. Lisa submits that MacPherson J. made this order without Kevin’s consent. I accept Kevin’s version of events. MacPherson J. would have been required to give Reasons if she had made such an order at a settlement conference on an opposed basis. Furthermore, her endorsement indicates, commencing at paragraph 2, that the order was “o/c”, meaning on consent. With respect to the cottage property, both parties agreed that Danielle Beitz would be the listing agent, and therefore MacPherson J. ordered that the property be listed for sale with her. In regard to both the matrimonial home and the cottage property, MacPherson J. also ordered as follows:

1. That the parties abide by the recommendations of the listing agents regarding cosmetic and minor improvements to prepare the properties for sale;

2. That if the parties could not agree to list prices, they would accept the price recommended by the listing agents;

3. That the parties accept the first reasonable offer on the properties;

4. That they communicate directly with the listing agents in a timely manner; and

5. That either party could bring a motion on notice to deal with any further incidents regarding the listing for sale of the properties.

PART 3: LISA’S MOTION TO AMEND HER APPLICATION

I. The Positions of the Parties

[12] As I have indicated, Lisa seeks to amend her application to add three claims. Kevin consents to the request to amend to include a claim for lump sum spousal support. Lisa also seeks to add a claim for an order requiring that property be transferred to or in trust for or vested in her as payment for support. She relies on Rule 11(3) of the Family Law Rules, O. Reg. 114/99, as am., which provides that on motion, the court shall give permission to a party to amend an application, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate. She seeks this relief based on concerns that Kevin would not comply with an order for spousal support, having regard for what she describes as consistent attempts on his part to exclude her from their jointly owned business since separation, and his clear indications to her that he does not intend to pay support since he plans to retire in a few years. Lisa’s counsel submitted that there would be no disadvantage to Kevin in granting the amendment that could not be compensated for in costs, given that the matter has not yet been set for trial, there is another settlement conference scheduled in this matter, and the court could in all likelihood make the order requested as part of its general powers in relation to spousal support orders regardless of whether such an order is specifically requested in the party’s pleading. Kevin opposes this amendment based on the potentially serious implications of such an order and his view that Lisa has not set out any material facts in support of the claim. In addition, he notes that Lococo J. concluded in his Reasons for Judgment in relation to Lisa’s motion for partition and sale of the matrimonial home that there did not appear to be an arguable case for an order vesting the property in Lisa’s name in satisfaction of a claim for support or equalization of net family property.

[13] Lisa also requests leave to amend her application to include a claim for a declaration that she is a 50% beneficial owner of Kevin’s lot on Whitestone Lake. She claims that she and Kevin, along with her parents, originally bought 6 acres of property on Whitestone Lake in 1984. This property consisted of two parcels of land reflected in two deeds. One of the deeds was for a piece of land that served as a mainland landing/dock area. The second was for a parcel of land on an island on Whitestone Lake (“the island property”), which includes a summer cottage. The evidence indicates that this island property consisted of four “parts” designated as parts 5, 6, 13 and 14 according to Plan PSR-555. These properties were registered in the names of Kevin and Lisa’s father, William Joseph Marlow, in 1984 as tenants in common. According to Lisa, although the properties were put in Kevin’s name, the parties purchased the properties using both of their funds. The evidence indicates that in or around May 2003, Mr. Marlow wished to transfer his half interest in the properties to the parties. Accordingly, at that time, Kevin and Lisa purchased Mr. Marlow’s interest in the lands. With respect to the island property, they purchased Mr. Marlow’s interest for $45,000.00, and the island property was then registered in both of their names as joint tenants. Lisa states that the parties financed the purchase of her father’s half interest in properties through a joint line of credit. The evidence indicates that in 2007, the parties decided to sever off part 5 of the island property, which was an area of vacant land of approximately 3 acres. Lisa states that the purpose of this plan was to have the ability to sell the severed part and potentially pay off debts, or to use any sale proceeds to improve their cottage that was on the island property. The parties could not sever off and sell part 5 and maintain title to that portion of the land in both of their names, because section 50(3) of the Planning Act, R.S.O. 1990, C. P-13, as amended prohibits a vendor of land from retaining a fee interest in abutting land. Accordingly, in order to address the prohibition set out in section 50(3), the parties registered the 3 acre severed area (part 5) in Kevin’s sole name. This is the property that I refer to as Kevin’s lot. Lisa states that this decision to register the severed area in Kevin’s sole name was an arbitrary decision, and that Kevin never paid her for her interest in the property. These are the general facts that she relies upon in support of her request to amend the application to seek a declaration that she is a 50% beneficial owner of Kevin’s lot.

[14] Kevin opposes Lisa’s proposed amendment to seek a 50% beneficial interest in his lot. He states that he originally purchased the half interest in the mainland landing/dock property as well as the island property with his own funds, and that he also contributed equally to the parties’ purchase of Mr. Marlow’s half interest in the properties in 2003. His position is that part 5 of the island property was registered in his sole name through the severance process not only to avoid the prohibition in section 50(3) of the Planning Act, but also as compensation for the fact that he had made a higher financial contribution than the Applicant to the purchase of the properties. In this regard, as I understand, he alleges that he paid 50% of the original purchase price of the properties in 1984, and then contributed 50% towards the purchase of Mr. Marlow’s half interest in 2003. Kevin emphasizes that Lisa’s trust claim was not at all anticipated, as she had not raised it at any court appearances or referred to it in her Financial Statements that she has filed in this proceeding. He argues that he would suffer prejudice by the proposed trust claim which he could not be compensated for through costs or an adjournment. He states that he initially opposed the Applicant’s motion for an order directing the sale of the cottage property, and that his original plan at the hearing of the motions before Lococo J. was to request an adjournment of the motion as he had not had sufficient time to respond. However, he claims that he decided to concede to the sale of the cottage property since he found solace in the fact that he would still retain his own lot on the island. He submits that the requested amendment seeking a declaration of a 50% trust interest in his lot raises the spectre that the Applicant will also force a sale of his lot, and that he would have opposed the request for sale of the cottage property had he known about this trust claim, on the basis that the Applicant was acting in bad faith. He also submits that raising this amendment after he consented to the sale of the cottage property deprived him of the opportunity to make a completely informed decision and to advance fulsome argument against the sale of the cottage property, since he did not appreciate at the time that the Applicant could be in a position to force a sale of both properties.

II. Legal Principles Respecting Amendment of Pleadings

[15] The starting point for the analysis of Lisa’s request to amend her application is Rule 11 of the Family Law Rules. Rule 11(1) provides that an application may be amended without the court’s permission if no Answer has been filed, or if the other parties consent to the amendment. The relevant Rule in this case is Rule 11(3), which stipulates as follows:

Amending Application or Answer with Court’s Permission

11(3) On motion, the court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.

[16] The directive set out in Rule 11(3) is essentially the same as that outlined in Rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194 relating to the amendment of pleadings in the general civil context, which provides that on motion at any stage of an action, “the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.” Accordingly, the jurisprudence that has been developed under both Rules is relevant in this case (Stefureak v. Chambers, 2005 CarswellOnt 1933 (S.C.J.), at para. 11). The Rules respecting amendments are mandatory. The court must permit an amendment absent disadvantage to the opposing party that cannot be cured by costs or an adjournment of the case (Stefureak, at para. 10; 1588444 Ontario Ltd. v. State Farm and Casualty Co., 2017 ONCA 42 (C.A.), at para. 25).

[17] The purpose of the Rules respecting amendments to pleadings is to encourage public access to the courts and to affirm the Superior Court of Justice as a court of equity where proceedings are decided on their merits (Spar Roofing and Metal Supplies Ltd. v. Glynn, 2016 ONCA 296 (C.A.), at para. 36). Another purpose of the amendment rules is “to bring all parties to disputes relating to one subject matter before the court at the same time so that disputes might be determined without the delay, inconvenience and expense of separate actions” (Spar Roofing, at para. 36). An amendment to a pleading may be permitted at any stage of the proceeding (1588444 Ontario Ltd., at para. 25; Whiten v. Pilot Insurance Co. (1996), 27 O.R. (3d) 479 (Ont. Gen. Div.), rev'd on other grounds (1999), 42 O.R. (3d) 641 (Ont. C.A.), aff'd 2002 SCC 18, [2002] 1 S.C.R. 595 (S.C.C.)).

[18] The central question on a motion to amend a pleading is whether the amendment will cause disadvantage to the opposing party that cannot be remedied through costs or an adjournment. Non-compensable prejudice may be actual or presumed. The disadvantage will be actual where the moving party would lose an opportunity or suffer an unjust burden in the litigation as a consequence of the proposed amendment that cannot be redressed through costs or an adjournment (1588444 Ontario Ltd., at para. 25; King's Gate Developments Inc. v. Drake(1994), 17 O.R. (3d) 841 (Ont. C.A.), at paras. 5-7; Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co.(1995), 25 O.R. (3d) 106 (Ont. Gen. Div.), at para. 9). The onus of proving actual disadvantage lies with the party opposing the amendment (Haikola v. Arasenau(1996), 27 O.R. (3d) 576 (Ont. C.A.), at paras. 3-4; 1588444 Ontario Ltd., at para. 25). Where the opposing party relies on actual disadvantage, they must set out evidence respecting such disadvantage with sufficient particularity to permit the party pursuing the amendment to respond, and to allow the court to take a hard look of the merits of the prejudice claim (1588444 Ontario Ltd., at para. 32, citing William J. Poulos in his article Prejudice: Taking a Hard Look at the Merits (1999), 22 C.P.C. (4th) 366, at p. 379).

[19] With respect to presumed disadvantage, the Ontario Court of Appeal has held that at a certain point, the delay in seeking an amendment will be so lengthy and the justification so inadequate, that prejudice to the responding party will be presumed (Family Delicatessen Ltd. v. London (City), 2006 5135 (ON CA), 2006 CarswellOnt 1021 (C.A.), at para. 6l; 1588444 Ontario Ltd., at para. 25). The court explained in 1588444 Ontario Ltd. that after inordinate delay in pursuing an amendment, the presumption in favour of granting leave to amend shifts to a presumption that non-compensable disadvantage will result if leave is granted (at para. 36). It added that “[t]his makes sense as a matter of fairness. It would be very difficult for a responding party to prove, for example, the generalized prejudice that witnesses’ memories will be diminished after a lengthy passage of time” (at para. 36). In the Family Law context, Pazaratz J. has emphasized that although a flexible and forgiving approach to amending pleadings is required, concerns about the cost, duration and emotional drain of family litigation must also be factored into the analysis, and “we cannot allow Rule11(3) to relieve litigants of their fundamental obligation to pursue their claims in a diligent and efficient manner” (Mio v. Mio, 2014 ONSC 2186 (S.C.J.), at para. 33). The onus of rebutting presumed disadvantage lies with the party seeking the amendment (Family Delicatessen, at para. 6). The presumption can be rebutted by providing an adequate explanation for the delay or adducing evidence that there is no non-compensable prejudice or disadvantage to the opposing party (1588444 Ontario Ltd., at para. 37; Ontario (Securities Commission) v. McLaughlin, 2009 CarswellOnt 2694 (Div. Ct.), at para. 6). Where the request to amend is made at a late stage in the proceedings, evidence that the party opposing the claim was aware that the moving party intended to advance the claim(s) in question will be relevant to the determination of the disadvantage analysis.

[20] In order to avoid a proposed amendment, the non-compensable disadvantage relied upon must be causally connected with the amendment, and must not flow from some other source (Klassen v. Beausoleil, 2019 ONCA 407 (C.A.), at para. 31; 1588444 Ontario Ltd., at para 25; Iroquois Falls Power Corp. v. Jacobs Canada Inc., 2009 ONCA 517 (C.A.), at paras. 20-21; leave to appeal to S.C.C. refused 2010 CarswellOnt 425 (S.C.C.); Mazzucca v. Silvercreek Pharmacy Ltd. (2001), 8620 (ON CA), 56 O.R. (3d) 768 (Ont. C.A.), at para. 65).

[21] Rule 11(3) cannot be considered in isolation in determining a motion to amend a pleading. Other Rules and general principles respecting pleadings are also relevant to the analysis, since a request to amend should be denied on the basis of non-compensable prejudice if the proposed amendments would have been struck had they been pled in the first instance (Spar Roofing, at para. 43). This principle covers a number of situations. First, a pleading that fails to set out the material facts in support of the claim or defence raised may be struck (Beaver v. Hill, 2018 ONCA 816 (C.A.)). Accordingly, a proposed amendment that fails to do so should either be refused, or the court should at minimum require more details from the moving party before determining whether to permit it (Marks v. Ontario, 2011 ONCA 248 (C.A.), at para. 19). Second, Rule 1(8.2) of the Family Law Rules permits the court to strike out a pleading on the grounds that it is inflammatory, a waste of time, a nuisance or an abuse of the court process. A proposed amendment that would be struck on these grounds should therefore not be allowed, and the principles that have developed respecting Rule 1(8.2) are therefore relevant on motions to amend pleadings. By analogy, in the civil context, it has been established that an amendment should be refused if it is frivolous, vexatious or an abuse of the court’s process (see for example Klassen, at para. 25; 1588444 Ontario Ltd., at para. 25; Iroquois Falls Power Corp., at paras. 15-16; Anderson Consulting v. Canada (Attorney General) (2001), 8587 (ON CA), 150 O.A.C. 177 (Ont. C.A.), at para. 37).

[22] Finally, a proposed amendment should not be permitted if it is clear that it discloses no reasonable claim or defence in law. This principle is well entrenched in the general civil law context, (see Klassen, at para. 25; 1588444 Ontario Ltd., at para. 25; Iroquois Falls Power Corp. v. Jacobs Canada Inc., 2009 ONCA 517 (C.A.), at para. 15-16, leave to appeal to S.C.C. refused 2010 CarswellOnt 425 (S.C.C.); Spar Roofing, at paras. 43-44; Anderson Consulting, at para. 37). It has also been applied in the Family Law setting (see Vaiman v. Yates (1987), 4345 (ON SC), 60 O.R. (2d) 696 (Ont. H.C.); Fleming v. Fleming, 2001 CarswellOnt 974 (S.C.J.), at paras. 6-22; Kiska v. Moore, 2017 ONSC 6872 (S.C.J.), at para. 11; Moghimi v. Dashti, 2016 ONSC 2116 (S.C.J.), at paras. 19-21; Moses v. Stephens, 2019 ONCJ 412 (O.C.J.), at paras. 31-33; Singal v. Singal, 2019 ONSC 2758 (S.C.J.), at para. 12). Rules 2(2) and 2(3) of the Family Law Rules reinforce the court’s gatekeeping role in refusing amendments that are clearly untenable as a matter of law. Rule 2(2) provides that the primary objective of the Family Law Rules is to enable the court to deal with cases justly. Rule 2(3) stipulates that dealing with cases justly includes:

a) Ensuring that the procedure is fair to all parties;

b) Saving expense and time;

c) Dealing with the case in ways that are appropriate to its importance and complexity; and

d) Giving appropriate court resources to the case while taking account of the need to give resources to other cases.

Rules 2(4) and 2(5) impose an obligation on the court to promote the primary objective of the Rules, which includes at an early stage identifying the issues and separating and disposing of those that do not need full investigation and trial (Rule 2(5)(a)). Permitting amendments that raise no reasonable claim or defence in law runs contrary to these obligations (Moses, at paras. 31-33). Furthermore, Rule 16(12) of the Family Law Rules specifically permits the court to strike out a pleading on the basis that it fails to set out a reasonable claim or defence in law. The principles that have developed under that Rule are therefore applicable where a question arises as to whether the proposed amendment is legally tenable. Drawing from both Family Law and general civil law cases, the general principles that apply in determining whether the proposed amendment raises a reasonable claim or defence in law are as follows:

a) The amendment must be granted unless it is “plain and obvious” that it discloses no reasonable claim or defence in law (Spar Roofing, at para. 43).

b) The court must assume that the facts relied on for the proposed amendment are true, unless patently ridiculous or incapable of proof, and the only question is whether they disclose a reasonable cause of action. It is not necessary for the moving party to tender evidence to support the claims or for the court to consider whether they would be able to prove the amended claim (Spar Roofing, at para. 36; see also Stefureak, at para. 18; Fraser v. Fraser, 2017 ONSC 3774 (S.C.J.), at para. 24).

c) General concerns regarding the strength of the factual and/or legal bases for the proposed amendment will not suffice to prevent the requested amendment (Fraser, at para. 27; Amirmojahedi v. Rivette, 2016 ONSC 5770 (S.C.J.), at para. 10).

d) The court should construe the proposed amendment generously and overlook inadequacies that are merely the result of drafting deficiencies (Falloncrest Financial Corp. v. Ontario (1995), 2934 (ON CA), 27 O.R. (3d) 1 (C.A.), at para. 11.).

e) Proposed amendments should not be denied as being legally untenable solely on the basis that they raise novel legal issues or questions of law that are not yet fully settled. Parties should be permitted to advance reasonable, novel claims without fear of having them shut down at the pleading stage (Children’s Aid Society of Hamilton-Wentworth v. R.(K.), 2001 CarswellOnt 5006 (S.C.J.), at paras. 36-37; Beaver).

[23] The court may also deny leave to amend pursuant to its inherent jurisdiction if it is established that the request to amend is motivated by bad faith (Stefureak, at para. 19; Fraser, at para. 24; Moghimi, at para. 18; Singal,at para. 12).

[24] The mandatory nature of the Rule respecting amendments to pleadings applies notwithstanding that the proposed amendment is prompted by a change in the case, is merely an afterthought or raises a completely new issue (Stefureak, at para. 13). The fact that the proposed amendment comes as a surprise to the other party is not necessarily relevant, unless the element of surprise causes some type of disadvantage to the other party that cannot be compensated for through costs or an adjournment (Stefureak, at para. 14, Fraser, at para. 24).

[25] Concern on the part of the party opposing the amendment that they would suffer financial hardship if a proposed new claim were allowed is not in and of itself the type of “disadvantage” contemplated by Rule 11(3) (Perri v. Perri, 2016 ONSC 5833 (S.C.J.), at para. 11), reversed in part on other issues 2017 ONCA 1011 (C.A.)). Similarly, non-compensable disadvantage does not include prejudice resulting from the potential success of a claim included in the proposed amendment (1588444 Ontario Ltd., at para. 25; Hanlan v. Sernesky (1996), 1762 (ON CA), 95 O.A.C. 297 (Ont. C.A.), at para. 2; Andersen Consulting, at paras. 36-37.).

[26] While it is preferable for a party seeking leave to amend to provide a draft of the proposed amended pleading, the failure to do so is not a bar to relief under Rule 11(3) (Fraser; Spar Roofing, at para. 39).

III. Analysis

A. The Amendment to Seek an Order That Property be Transferred to Lisa, or in Trust for Her, or Vested in her as Security for Support

[27] I deal first with Lisa’s request for leave to amend her application to include a claim that property be transferred to her or in trust for or vested in her as security for payment for support. Applying the principles outlined above, I am permitting this amendment. I do not accept Kevin’s position that Lisa has not articulated any material facts in support of this claim. Lisa has outlined in great detail her version of events which she claims supports her position that Kevin has not been concerned about her need for financial support since the separation on June 19, 2019, and that she would have difficulty enforcing support against him in the future. She alleges that Kevin took numerous unilateral steps to shut her out of the operation of NGL. In addition, she claims that Kevin has clearly relayed to her that he intends to retire in a few years, despite his relatively young age, which could potentially thwart her ability to claim and collect ongoing spousal support from him. In considering whether to allow the amendment, I am to assume that the facts that Lisa proposes to plead are true.

[28] Additionally, the evidence does not satisfy me that the proposed claim is legally untenable, is motivated by bad faith, or that it is inflammatory, a waste of time, a nuisance or an abuse of the court process. I do not accept Kevin’s argument that the amendment should be denied based on Lococo J.’s conclusion in his Reasons for Judgment on the motion respecting partition and sale of the matrimonial home that Lisa had not established an arguable case for an order vesting Kevin’s interest in the home into her name alone in satisfaction of an equalization payment or as security for spousal support. The legal principles and relevant considerations on a motion for partition and sale of jointly owned property are very different from those that apply on a motion to amend a pleading. On the motion for partition and sale, Lococo J. was required to consider the strength of the evidence adduced by Lisa in support of her position that a vesting order respecting the home should be made in her favour as payment for an equalization award owing to her or as security for spousal support. The focus on a motion to amend is not on the sufficiency of the evidence in support of the proposed claim or the legal strength of the case, but whether the amendment raises a reasonable cause of action. The rules regarding amendment of pleadings are designed to give the moving party significant leeway with proposed amendments so as to give them an opportunity to present their case on a complete record and with the benefit of a full and fair trial on the issues raised, rather than on an interim motion with only affidavit evidence. Based on the materials before me, it is not plain and obvious that Lisa’s proposed claim for an order that property be transferred to her or in trust for or vested in her as security for payment of spousal support is legally untenable.

[29] Finally, Kevin has not convinced me that he would suffer any other form of disadvantage from the amendment under discussion for which he could not be compensated for by means of costs or a postponement of further steps in the case to allow him to respond. A trial scheduling conference has not yet occurred, and a trial date has not been set. The trial in this matter will not take place for many months, and therefore Kevin will have a great deal of time to prepare a response to this new claim. The potential serious consequences to Kevin of the court making the order that Lisa is requesting does not fall within the scope of the disadvantage that Rule 11(3) envisions.

B. The Amendment to Seek a Declaration of a 50% Beneficial Ownership in Kevin’s Lot

[30] I turn to Lisa’s request to amend to include a declaration that she is a 50% beneficial owner of Kevin’s lot. For the reasons set out below, I find that the proposed amendment as currently framed is somewhat unclear respecting the basis for the trust claim that Lisa is advancing. In addition, further to questions that I posed during the hearing about the history of the transactions respecting Kevin’s lot, questions arose as to whether the claim is legally tenable. For the reasons that follow, and in furtherance of my obligation pursuant to Rule 2(4) of the Family Law Rules to promote the primary objective of the Rules of dealing with cases justly, I am adjourning Lisa’s request for an amendment to add this claim for further argument. I am requesting supplementary evidence and legal authorities to address the issues of concern that I discuss below, as well as a draft amended application from Lisa setting out with greater precision the claim that she is proposing to advance and the material facts in support of the claim.

[31] I address first my concerns about the precise nature of the claim respecting Kevin’s lot that Lisa proposes to add. As I have indicated, she seeks a declaration that she is a 50% beneficial owner of the lot. However, she does not articulate the legal grounds upon which she is advancing this trust claim. In reviewing her evidence in support of this proposed amendment, it appears that she may be pursuing this declaratory relief on the basis of resulting trust principles. However, there are other possible legal constructs for claiming a beneficial interest in property in the Family Law context, such as express trust principles or the remedy of constructive trust for unjust enrichment. The law respecting these various trust doctrines is distinct, and Kevin should in fairness be given clear notice of the specifics of the trust claim that Lisa seeks to advance. I am therefore requiring Lisa to serve and file a draft amended application with more specifics regarding this proposed new claim for my consideration on the return of this motion.

[32] The second question that arose during the hearing is whether Lisa’s proposed amendment to seek a 50% beneficial interest in Kevin’s lot is legally tenable. It is clear from the evidence adduced by both parties that the parties deliberately registered Part 5 of their island property (which became Kevin’s lot) in Kevin’s sole name, rather than their joint names, so that they could carry out their wish to sever the lot without violating s. 50(3) of the Planning Act. They could not have legally severed the lot off from the rest of the island property and retained title in both of their names, because this would have breached section 50(3). The question that I raised with Lisa’s counsel during her submissions is whether Lisa’s claim for a beneficial 50% interest in Kevin’s lot in these circumstances is legally possible, since it appears on its face to smack of a “run-around” of the severance restrictions set out in section 50(3) of the Planning Act. Ms. Scholz acknowledged that this question had crossed her mind as well, and that she had actually obtained an opinion on the issue from a real estate lawyer. She submitted that she had satisfied herself based on that legal opinion that the claim was legally tenable, that Kevin and his counsel had not raised this issue in response to Lisa’s motion to add this claim to her application, and that it was therefore not necessary for me to address my mind to this question on the motion. I disagree. The law is clear that on a motion to amend a pleading, one of the important considerations is whether the proposed pleading raises a reasonable claim or defence in law. If the judge hearing the motion has genuine concerns as to whether the claims encompassed in the proposed amendment are legally tenable, it is incumbent upon the moving party to address those concerns. As I have already discussed, Rule 11(3) of the Family Law Rules respecting amendment of pleadings must be considered and applied in conjunction with Rule 2(4), which requires the court to apply the Rules to promote the primary objective of enabling the court to deal with cases justly. Rule 2(3) stipulates that dealing with a case justly includes, inter alia, saving expense and time. Allowing amendments to pleadings that are not legally tenable does not promote this very important priority in Family Law litigation. Furthermore, Rule 2(5)(a) requires the court to promote the primary objective by active management of cases, which includes, at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial. As I have stated, this Rule reinforces the court’s role in the Family Law context as a gatekeeper in ensuring that proposed amendments to pleadings that have no reasonable basis in law are not simply “rubber stamped” in the face of the court’s independent concerns regarding the viability of the claims.

[33] Another question that I raised during the hearing of the Applicant’s motion to amend to add the trust claim was whether there would be any implications for the title to the cottage property on the island if she were to succeed in the trust claim. Specifically, my question was whether this could result in a merger of the two properties again, so as to prevent a sidestep around section 50(3) of the Planning Act. I posed this question because Lococo J. ordered on November 10, 2020 that the cottage property be sold, prior to Lisa raising the trust claim. If the trust claim would create a potential cloud on title to that property, then this in turn would raise questions as to whether any potential purchasers would have to be put on notice, and whether this could in turn impact the value of the cottage property. All of these issues are relevant to whether Kevin would suffer non-compensable disadvantage as a result of the proposed amendment, since Lisa compelled the sale of the property before raising the trust claim. Lisa’s counsel Ms. Scholz indicated that she had sought an opinion on these issues as well, and that she had satisfied herself that there would be no problem of potential merger and no requirement to put potential purchasers on notice. However, she did not provide me with any of the legal authorities that she was relying on for these conclusions. I am not prepared to deal with the trust claim amendment until I receive supplementary evidence and legal authorities addressing the questions that arose during the hearing as to whether the claim is legally tenable, and whether the claim would impact the title to and value of the cottage property on the island. Furthermore, if there are in fact concerns that the trust claim could affect title to the cottage property and the value of that property, Kevin may wish to pursue relief in relation to the order for sale of that property pursuant to the court’s inherent jurisdiction (see West v. West, 38887 (ON SC), [2001] O.J. No. 2142 (S.C.J.)).

[34] Kevin submitted that he would suffer non-compensable disadvantage from the addition of the trust claim, since he could have contested Lisa’s motion for sale of the cottage property on the basis of “bad faith” by Lisa had he known about the trust claim when the motion was argued, and this litigation opportunity is now lost. As I understand the argument, his concern is that a successful trust claim would also give Lisa the power to force a sale of his lot at a later date, leaving him with no property at all on the island. He submits that he has a very special attachment to the cottage property and his lot on the island, and his opinion is that Lisa is pursuing a trust claim in relation to his lot out of vengeance, so that she can force a sale of that property as well. I do not accept this particular line of reasoning as a basis for opposing the amendment in question. As I have indicated, in order to avoid a proposed amendment on the basis of actual disadvantage, the opposing party must provide specific evidence of the disadvantage relied upon (1588444 Ontario Ltd.). It was therefore incumbent upon Kevin on this motion to adduce evidence in support of his argument that he lost the opportunity to advance an arguable case against the sale of the cottage property. In addressing this argument, a brief review of the law respecting partition and sale of jointly held property, and the grounds for opposing this relief, is necessary. The court has the power to make an order for the partition and sale of jointly held property prior to trial pursuant to sections 2 and 3(1) of the Partition Act, RSO 1990 c. P-4 (Silva v. Silva, 6718 (ON CA), 1990 CarswellOnt 319 (C.A.); Martin v. Martin, 7402 (ON CA), 1992 CarswellOnt 226 (C.A.)). This power extends to property that is held jointly by spouses, including a matrimonial home (McNeil v. McNeil, 2020 ONSC 1225 (S.C.J.); Dhaliwal v. Dhaliwal, 2020 CarswellOnt 8983 (S.C.J.)). A joint tenant has a prima facie right to an order for the partition and sale of lands held with another joint tenant, and that other owner has a corresponding obligation to permit that partition and sale (Afolabi v. Fala, 2014 ONSC 1713, 2014ONSC 1713 (S.C.J.), at para. 27). The court is required to compel partition and sale unless the opposing party has established to the court’s satisfaction that the order should not be made (Jama v. Basdeo, 2020 ONSC 2922 (S.C.J.); Steele v. Doucett, 2020 ONSC 3386 (S.C.J.); Dhaliwal). The party opposing an order for partition and sale has the onus of proving that there is sufficient reason, recognized in law, for why the court should exercise its discretion to refuse the sale (Afolabi; Dhaliwal). In the Family Law context, the courts have held that a request for partition and sale prior to trial may be denied where the party opposing the sale can establish that a sale of the property could jeopardize their potential rights in relation to the home under the Family Law Act (Silva; Latcham v. Latcham, 44960 (ON CA), 2002 CarswellOnt 1757 (C.A.); Binkley v. Binkley (1988), 8717 (ON CA), 14 RFL (3d) 336 (Ont. CA); Parent v. Laroche, 2020 ONSC 703 (S.C.J.); Dhaliwal). In addition, the court may decline to make an order for partition and sale where the party opposing the sale is able to establish that the moving party has acted in a malicious, vexatious or oppressive manner towards them (Latcham). The malicious, vexatious or oppressive conduct relied on must relate to the partition and sale issue itself, and not to the general conduct of the person seeking the sale (Kaphalakos v. Dayal, 2016 ONSC 3559 (Div. Ct.); Marchese v. Marchese, 2019 ONCA 116 (C.A.), at para. 5). Specifically, the court must look to the reasonableness of the positions taken by the parties in relation to the application for partition and sale (Kaphalakos; Osborne v. Myette, 2004 CarswellOnt 33331 (S.C.J.), at para. 12). In Greenbanktree Power Corp. v. Coinamatic Canada Inc., 48652 (ON CA), [2004] O.J. No. 5158 (C.A.), the Ontario Court of Appeal held that the notion of oppression in the context of claims for partition and sale of jointly held property includes hardship. Accordingly, it held that the court could refuse partition and sale on the ground that the party resisting the sale would suffer hardship as a result of the sale that would be of such a nature as to amount to oppression. Faieta J. elaborated upon the test for establishing malicious, vexatious or oppressive conduct in the context of partition and sale proceedings as follows in Hutchison-Perry v. Perry, 2019 ONSC 4381 (S.C.J.), as follows at para. 35:

There is some overlap in the scope of the terms "malicious" or "malice", "vexatious", and "oppressive". "Malice" arises when a proceeding is brought for an improper purpose including spite, ill-will, vengeance, or to gain a private collateral advantage: Nelles v. Ontario, 77 (SCC), [1989] 2 S.C.R. 170 (S.C.C.), at pp. 193-194. A proceeding may be viewed as "vexatious" for numerous reasons including when multiple proceedings are brought to re-litigate an issue already decided or when a proceeding is brought to harass or oppress others rather than to assert a legitimate right: Lang Michener Lash Johnston v. Fabian (1987), 172 (ON SC), 59 O.R. (2d) 353 (Ont. H.C.); Chinese Publications for Canadian Libraries Ltd. v. Markham (City), 2017 ONCA 968 (Ont. C.A.), at para. 9; Van Sluytman v. Muskoka (District Municipality), 2018 ONCA 32 (Ont. C.A.), at para. 23. A motion for the sale of a matrimonial home is "oppressive" when the co-tenant that opposes the sale will suffer serious hardship if the matrimonial home is sold: MacDonald v. MacDonald (1976), 845 (ON SC), 14 O.R. (2d) 249 (Ont. Div. Ct.), at p. 254.

[35] Against the backdrop of these legal principles, I conclude that Kevin has not adduced any evidence to suggest that he could have had an arguable case to prevent the partition and sale of the cottage property on the basis of “bad faith,” as he has alleged. Although the argument is framed in terms of “bad faith,” it appears that it is based on the caselaw regarding malicious, vexatious or oppressive conduct in relation to the request for partition and sale. Kevin did not present any evidence that would support a finding that Lisa’s conduct in relation to the application for sale of the cottage property would have met the high threshold of being malicious, vexatious or oppressive in the event that the trust claim had also been before Lococo J. when he heard Lisa’s motion for sale of the cottage property. The fact that Lisa could have forced the sale of both the cottage property and Kevin’s lot would understandably be very upsetting for Kevin, given his strong attachment to both properties. However, separated parties almost always have very strong attachments to their jointly held properties, and emotional upset and disappointment about losing them post-separation is not in and of itself a sufficient basis for preventin an order for sale. The evidence does not support a finding that Lisa was motivated to advance her trust claim and to seek a sale of the cottage property out of malice or vengeance rather than her desire to pursue what she genuinely believes to be her rights in relation to the properties. Furthermore, there is no evidence before me to suggest that Kevin would suffer hardship as a result of the sale of both properties, apart from the emotional upset of being left with no property in the area.

PART 4: ISSUES RELATING TO THE SALE OF THE MATRIMONIAL HOME

I. Issue #1: Who Should be the Listing Agent?

[36] I turn next to the issues relating to the sale of the matrimonial home. The first issue in dispute is who should be the listing agent. The second issue is whether Kevin’s consent to and participation in the marketing and sale of the home should be dispensed with.

[37] Dealing first with the listing agent issue, Lisa seeks an order that the home be listed for sale with her brother’s son, William Marlow, of Remax Escarpment Realty Inc., whereas Kevin wants to list the house with Zoi Ouzas of Remax Garden City Realty Inc. I conclude that the house should be listed for sale with Mr. Marlow.

[38] Lococo J. did not address the question of the listing agent or other particulars regarding the sale of the matrimonial home in his November 10, 2020 Reasons for Judgment. He suggested that the parties consider as a starting point the proposal that Lisa had made in one of her affidavits. However, he specifically directed in paragraph 3 of his order that either party could bring a further motion for directions regarding the listing for sale. As I indicated earlier in these Reasons, the parties discussed the question of the listing agent for the home at length with MacPherson J. during the settlement conference on November 24, 2020. Kevin eventually agreed to the order that MacPherson J. made on November 24, 2020 providing that the matrimonial home was to be listed for sale with anyone of the Applicant’s choice other than Wendy Murray Nicholson.

[39] Further to the order of MacPherson J., Lisa chose William Marlow as the listing agent for the matrimonial home on November 27, 2020. Kevin opposes this choice for several reasons. First, he claims that it was an implied term of MacPherson J.’s order dated November 24, 2020 respecting the listing agent for the home that Lisa would choose an independent realtor who did not have any close connections with either party He argues that Mr. Marlow is not an independent, arms-length person, and that he is likely to be aligned with Lisa on issues relating to the sale. He also asserts that Mr. Marlow and Lisa took steps relating to the listing of the property without his input, and states that this supports his concerns relating to Mr. Marlow’s lack of impartiality between the parties. Finally, he suggests that Mr. Marlow is a young and inexperienced realtor, and that these factors could impact the price that the parties may realize on the home.

[40] I am dismissing Kevin’s request that the court name Ms. Ouzas as the listing agent, and I am directing that the house be listed with Mr. Marlow forthwith, for the following reasons:

1. The issue of the listing agent for the matrimonial home was clearly discussed at length at the settlement conference before MacPherson J. on November 24, 2020. Both parties had the benefit of counsel on that day, and an order was made on consent delegating the task of choosing an agent to the Applicant, subject to the sole proviso that she was not to choose Ms. Murray Nicholson. Both parties were aware at that time that Mr. Marlow was a real estate agent, as he is their nephew and he has been a realtor operating in the area where the matrimonial home is situated for four years. Accordingly, Kevin should have addressed his mind to Mr. Marlow and specifically requested that he too be excluded as a possible listing agent if he objected to him being hired. He has not appealed the November 24, 2020 order.

2. There is no evidence before me whatsoever indicating that Mr. Marlow is biased in favour of Lisa’s interests in this matter. He is clearly a realtor who is anxious to maximize the money that both he and the parties will realize from the sale of the house.

3. Kevin’s claims that Mr. Marlow and Lisa did not include him in matters relating to the listing of the house for sale are not borne out by the evidence. To the contrary, emails from Lisa to Kevin in early December 2020 indicate that Lisa actively attempted to engage Kevin in the process of working with Mr. Marlow to get the house ready and listed for sale. On December 1, 2020, she emailed Kevin and asked him what days he was available the following week to meet with Mr. Marlow to identify tasks that needed to be completed to ready the house for sale. Kevin did not respond, and therefore Lisa sent a second request on December 2, 2020 to verify when he could attend the house to meet with Mr. Marlow. Kevin failed to respond again, so Lisa sent a further follow up email on December 3, 2020. Finally, after receiving no response from Kevin, she arranged a meeting with Mr. Marlow for December 5, 2020, when she believed Kevin would be home. She informed Kevin of this meeting by email on December 6, 2020, and relayed to him that Mr. Marlow was preparing a proposed listing agreement and would be letting them know what had to be done to list the house. Mr. Marlow sent Kevin the proposed listing agreement on December 6, 2020, and he brought hard copies of the agreement to the house on December 7, 2020 for the parties to sign.

4. Furthermore, there is no evidence to support Kevin’s concerns that Mr. Marlow is too young or inexperienced to carry out the sale of the home in such a manner as to maximize the parties’ return. Mr. Marlow has been working as a realtor for several years, specializes in the area where the home is located, has clearly been diligent in attending to the tasks required to list the house, and appears to be a very hard worker. He attended the home promptly, made recommendations for decluttering and minor repairs, took measurements to include in the listing, prepared a listing agreement in a timely manner, and followed up diligently with both parties.

5. Kevin has assured the court that he will cooperate fully in listing the house with Mr. Marlow in the event that the court determines that this is the appropriate course of action.

6. Finally, Mr. Marlow has agreed to charge a commission of only 3%, as opposed to the 4% that Ms. Ouzas proposes. The lower commission that Mr. Marlow has offered will benefit both parties. In addition, Mr. Marlow has already done much of the work required to list the property, and any further delay in the listing process could prejudice the parties’ ability to benefit from the spring market.

II. Issue #2: Should the Court Dispense with Kevin’s Participation in and Consent to the Marketing and Sale of the Matrimonial Home

[41] The Applicant seeks an order dispensing with Kevin’s consent to and participation in the marketing and sale of the matrimonial home based on concerns regarding his alleged lack of cooperation in preparing the house for sale and signing the listing documents.

[42] An order dispensing with a spouse’s consent to the marketing and listing for sale of jointly owned real property is an extremely serious and interventionist remedy, given that real property is typically a couple’s most valuable asset. The court should only resort to this measure in exceptional circumstances, where there is clear and compelling evidence that the spouse has frustrated the sale of the property by consistently taking unreasonable positions in relation to the sale, or by engaging in a pattern of obstructionist conduct and tactics that have stonewalled the sale process. I am not satisfied that this relief is warranted in this case. The listing of the matrimonial home was held up primarily due to the dispute about Lisa’s choice of Mr. Marlow as a realtor. While Kevin’s position has not prevailed on this issue, I cannot say that it was so unreasonable as to warrant an order dispensing with his participation in and consent to the marketing and sale of the property. The process of determining a listing agent for this property has been painful, to put it mildly. I accept the Respondent’s evidence that he consented to the order respecting the issue on November 24, 2020 in an attempt to avoid further delay and expense in arguing the issue. He had objected to Ms. Murray Nicholson on the basis that Lisa’s mother had a connection to her, so it was reasonable for him to expect that Lisa would be sensitive to his concern about impartiality and would choose an arm’s length realtor who had no personal connections with her or her family. When he learned that Lisa had chosen Mr. Marlow, he responded promptly and attempted to arrange for a return of the matter to court as soon as possible. Ms. Moritz wrote to Ms. Scholz on December 1, 2020 relaying Kevin’s concern that there was a conflict of interest in relation to the choice of Mr. Marlow as the listing agent. She wrote to Ms. Scholz again on December 7, 2020 indicating her intention to bring a motion if the parties could not resolve the dispute regarding Lisa’s choice of Mr. Marlow as the agent. She proposed in that letter that the parties attempt to schedule all necessary motions at the same time, to be heard on January 20, 2021. Kevin and his counsel raised and attempted to address their concerns about the choice of Mr. Marlow in a timely and responsible manner. Kevin’s failure to respond to requests that he sign the listing agreement must be considered against the backdrop of his objection to Mr. Marlow being the listing agent.

[43] Lisa’s request to have sole carriage of the marketing and sale of the matrimonial home is also based on allegations that Kevin did not cooperate in carrying out necessary repairs and decluttering of the home to prepare it for listing. However, Kevin adamantly disputes these allegations. He claims in response that Lisa interfered with efforts to prepare the house for sale by locking him out of three bedrooms of the house, which he alleges are packed with items. In addition, he asserts that Lisa has locked off the pool house and backyard shed areas so that he cannot gain access to those areas. He notes that his counsel raised these concerns in correspondence to Ms. Scholz dated December 1, 2020, and requested that Lisa immediately open all of the bedrooms and the shed so that the parties could both have access to the entire house, start compiling a list of household contents and commence dividing household contents and de-cluttering the home. He alleges that Lisa’s complaints about him not de-cluttering the home are disingenuous, since she clearly does not appreciate him spending time in the home or being in his presence. Finally, he states that he has wanted to de-clutter the garage and backyard shed, but that he cannot do so because there are many motors and parts belonging to NGL in those areas and Lisa wants them to be valued before they are moved or disposed of. He emphasizes that Lisa was required pursuant to the order of Lococo J. dated November 20, 2020 to provide him with the key to the storage locker owned by NGL, but that she has not complied with this order. According to Kevin, this has also impeded efforts to prepare the house for sale, since he wished to put many items belonging to NGL in the storage unit for the purpose of de-cluttering. Upon carefully considering all of the evidence, I am not satisfied that Kevin has been obstructionist, negligent or cavalier in regard to efforts to prepare the house for sale.

PART 5: ISSUES RELATING OT THE SALE OF THE COTTAGE PROPERTY

I. Issue #1: Should the Sale of the Cottage Property be Delayed Until Mid April 2021?

[44] As I have indicated, there are two issues to be determined in relation to the cottage property. First, Kevin is requesting that the listing of the cottage property and mainland dock/landing area be delayed until mid April 2021. Second, Lisa seeks an order dispensing with Kevin’s participation in and consent to the marketing and sale of the property.

[45] I turn first with Kevin’s request to postpone the sale of the cottage property and the mainland dock/landing area until mid April 2021. Lisa submits that the property should be listed for sale forthwith for several reasons. First, she states that the orders of Lococo J. dated November 20, 2020 and MacPherson J. dated November 24, 2020 did not permit or contemplate a delay in the listing date, and it was implicit in those orders that the listing for sale should occur right away. Second, she states that there are already buyers who are very interested in property in the area, and that the parties should attempt to capitalize upon the spring market as soon as possible. Third, she states that there are no difficulties accessing the property at this time of year, since the lake is solidly frozen over and safe to traverse. Kevin submits that it is in the parties’ mutual interest to delay the sale of the property until mid April 2021. He relies on an email that the agreed-upon listing agent, Ms. Danielle Beitz, wrote on November 20, 2020, in which she suggested that the parties would likely get the highest value in the spring after the ice on the lake thaws and potential buyers could feel safe crossing the lake. In addition, he argues that the cottage property would show much better generally after the snow and ice melt and the cottage is properly opened up, since the cottage is not set up or intended for winter use. He states that the cottage does not have electricity or running water in the winter, and that the only source of heat is a wood stove that can only warm the cottage up slightly.

[46] I find Kevin’s arguments in favour of a delay in the sale of the cottage property to be persuasive. I note that both the orders of Lococo J. and MacPherson J. contemplated that further directions from the court could be required respecting the sale of the cottage property. The timing of the sale of this property is in my view properly a matter worthy of further judicial direction, given its unique status as a summer island property that poses special challenges in terms of accessibility when the lake is frozen over. In addition, Kevin’s arguments that the cottage would not present as well in the winter as in the spring and summer make eminent good sense, since there is no electricity or running water in the winter months. In any event, the questions that have arisen respecting the trust claim in connection with Kevin’s lot, and whether it poses any issues respecting title to and/or the value of the cottage property, are additional reasons for pausing the listing for sale of the cottage property. For these reasons, I am ordering that the timing of the sale of the cottage property also be adjourned for further argument, at the same time as the issues that I have raised respecting the trust claim.

II. Issue #2: Should the Court Dispense With Kevin’s Consent to and Participation in the Marketing and Sale of the Cottage Property?

[47] Lisa requests an order that Kevin’s participation in and consent to the marking and sale of the cottage property be dispensed with based on concerns that he has not cooperated in getting the property listed for sale. I am not satisfied that such an order is appropriate or necessary in this case. Kevin raised the issue of appropriate timing for the sale of the cottage property in a timely manner, and the delays respecting the listing have been attributable to the parties’ disagreement on this issue. It made sense for the parties to resolve the timing issue before drawing Ms. Beitz into the fray and finalizing the terms of a listing agreement. Furthermore, the timing of the listing could affect the recommended list price, given the vicissitudes in the real estate market at this time. Finally, as I have indicated, the questions that I have addressed regarding the possible implications of Lisa’s trust claim on the title to and value of the cottage property are such that the sale of the cottage property should be postponed pending further argument.

PART 6: KEVIN’S REQUEST FOR AN ORDER RESPECTING THE MOTORS AND PARTS BELONGING TO NGL

[48] Finally, Kevin requests an order permitting him to dispose of a number of used motors and parts belonging to NGL that are located in the garage and shed of the matrimonial home. Kevin submits that the value of these items is nominal, and that the order that he is requesting is required in order to clear out the garage and shed areas so that the house can be listed for sale. Lisa argues that the used motors and other parts located in the garage and shed are assets belonging to NGL, that they potentially have significant value, and that they need to be properly valued by a certified business valuator before they are disposed of. She submits that she is interested in potentially continuing the business on her own and hiring someone to do the work that Kevin has traditionally carried out. For these reasons, her position is that these assets should not be disposed of pending resolution of what is to occur with the business.

[49] A significant amount of time was spent at the hearing on the issue of these used motors and parts. It is disappointing, to say the least, that the parties were unable to reach a pragmatic resolution of this issue without the court’s intervention. There are two major considerations in determining how to deal with these items. First, given that an order has been made for the sale of the matrimonial home, it is necessary to establish a plan for the removal of the motors and parts prior to the closing date on the sale. Second, given that the assets belong to NGL, and that a business valuation is required, they should not be disposed of until all valuations have been completed. Neither party has taken a position that addresses these two important overriding considerations. I understand that there is a storage locker belonging to NGL that could potentially be used to store these items until they are valued, but Lisa has the key and Kevin states that she has denied him access to the locker. The parties were unable to give me a clear indication at the hearing of whether there is space in the locker for the motors and parts in question. For the court to have to delve into this sort of minutiae to resolve the parties’ problems is unacceptable. The court must regrettably step in and dictate a reasonable and pragmatic approach to this issue. I conclude that the most appropriate course of action is that these items should remain on the premises of the matrimonial home until all valuations are completed, or until at least 14 days prior to the closing of any sale of the matrimonial home, whichever is earlier. If the valuations of these assets are not completed by 14 days prior to the closing for the sale of the home, the parties should remove them to a storage locker until the valuations are completed and agreement is reached or a court order is made regarding their disposal, with the storage costs to be paid out of NGL’s operating account.

PART 7: TERMS OF ORDER TO ISSUE

[50] Based on the foregoing, order to go as follows:

1. The Applicant is granted leave to amend her application to clarify that she seeks spousal support on a periodic and/or lump sum basis, and to request an order that property be transferred to or in trust for or vested in her to satisfy any support order that may be made in her favour.

2. The Applicant’s request for an order dispensing with the Respondent’s participation in and consent to the marketing and sale of the jointly held matrimonial home located at 41 Rosedale Street, Grimsby, Ontario and the jointly held cottage property including mainland landing/dock area located on Whitestone Lake is dismissed.

3. The Respondent’s request for an order that Zoi Ouzas of Remax Garden City Realty Inc. be the listing agent for the sale of the matrimonial home is dismissed.

4. William Marlow shall be the listing agent for the sale of the matrimonial home. The parties shall obtain an updated opinion from Mr. Marlow respecting an appropriate listing price forthwith, and they shall list the house for sale within 2 days after receiving this opinion. The terms of the order of MacPherson J. dated November 24, 2020 shall otherwise continue to apply with respect to the sale of this property.

5. The used motors and parts belonging to Naturally Gas Limited (“NGL”) currently located on the premises of the matrimonial home shall remain on the premises until the earlier of:

a) The completion of all valuations by the certified business valuator to be retained by the Applicant and by any expert hired by the Respondent to critique the Applicant’s business valuation report; and

b) 14 days prior to the closing date for the sale of the matrimonial home.

6. The motors and parts referred to in paragraph 5 may be disposed of as mutually agreed upon between the parties following the completion of any business valuations, or as permitted by subsequent court order.

7. In the event that the motors and parts are not valued and disposed of through mutual agreement or court order by 14 days prior to the closing date for the sale of the matrimonial home, the parties shall rent a suitable storage unit for the assets until a determination is made as to their disposal. Kevin shall be responsible for making these arrangements and transporting the assets to the storage unit. The costs of any such storage shall be paid out of the NGL operating account.

8. The Applicant’s request for leave to amend her application to include a claim that she be declared the beneficial joint owner of the lot on Whitestone Lake presently registered in the Respondent’s sole name (“the Respondent’s lot”), and the question of the timing for the listing for sale of the jointly held cottage property, are adjourned for further argument. The parties shall appear before me for a speak-to appearance on March 31, 2021 at 10:00 a.m. for estimated 30 minutes to set timelines for the service and filing of supplementary evidence, Facta and Books of Authorities on these matters. The issues for further argument are as follows:

a) Whether the Applicant’s claim for a declaration of a 50% beneficial interest in the Respondent’s lot raises a reasonable claim in law;

b) Whether the trust claim has any possible implications for the title of the parties’ jointly owned cottage property adjacent to the Respondent’s lot, and if so, whether notice of the claim should be given to potential purchasers of the cottage property; and

c) If the answers to the questions set out in subparagraph (b) are yes, whether there are any implications in regard to the value of the parties’ jointly owned cottage property.

9. The Applicant shall serve and file a proposed draft amended application setting out the specifics of and material facts in support of her proposed trust claim in relation to the Respondent’s lot by no later than March 25, 2021.

10. Costs in connection with the motions are reserved, to be determined after the hearing of the outstanding issues referred to in paragraph 8 is completed.

Released: March 17, 2021 Chappel J.