Court File and Parties

COURT FILE NO.: FS-17-39898

DATE: 2021 04 19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Isha Persaud, Applicant

AND:

Saim Paul Persaud, Respondent

BEFORE: Conlan J.

COUNSEL: Sundha Chandra, for the Applicant

Lisa Bombardieri, for the Respondent

HEARD: April 19, 2021

ENDORSEMENT

The Motion

[1] The Respondent husband moves for an Order that the jointly-owned matrimonial home in Burlington, Ontario shall be listed for sale, and for other related relief. The Applicant wife opposes the Motion.

The Result

[2] For the following reasons, the Motion is granted. An Order shall issue in accordance with the relief sought (clauses 1-8) in the husband’s Amended Notice of Motion dated 29 March 2021. On costs, unless they are resolved between the parties, this Court will accept written submissions. The husband shall file first, within thirty (30) calendar days of today. The wife shall file next, within fifteen (15) calendar days of her counsel’s receipt of the husband’s submissions. Without leave of the Court, no reply is permitted.

The Reasons

[3] As joint owners, the husband and the wife may be compelled to make or suffer partition or sale of the matrimonial home: section 2 of the Partition Act, R.S.O. 1990, chapter P.4, as amended. The husband’s Motion is authorized under section 3(1) of that statute.

[4] Ms. Chandra is correct that the husband’s right to the relief that he seeks is not absolute. This Court has some discretion to deny it. Both sides filed helpful statements of law and casebooks, though there is no dispute about the governing law. Its application on our facts is the only source of conflict between the parties.

[5] In Punit v. Punit, 2014 ONCA 252, the Court of Appeal for Ontario, specially constituted as a panel of the Divisional Court (for jurisdictional reasons), held that a judge hearing this type of motion should consider the likelihood that the sale of the matrimonial home would prejudice the rights of the opposing party on the substantive family law issues (paragraph 21).

[6] Here, the wife herself, in her Application, asked for an Order that the matrimonial home be sold. In addition, she consented to the Order of Gibson J. made on August 30, 2018, which Order required that the home shall be listed for sale. The substance of that Order has never been varied, regardless of whether the sale was successful or not. As well, she swore an affidavit on April 1, 2021 which expressly states that she consents to an Order that the home be sold.

[7] The wife now opposes the relief, however, on several bases: (i) she loves her home and does not want to have to leave it and her surrounding community of friends and services, (ii) she, in her early 70s, is under medical care and may have her health issues exacerbated by having to relocate (a doctor’s letter is part of her materials filed on the Motion), (iii) the sale of the matrimonial home should be deferred to the judge presiding on May 13, 2021 (the return date of the husband’s Motion for summary judgment or, alternatively, to strike the wife’s pleadings for non-compliance with Court Orders) or the trial judge (none is assigned as no trial dates have been set) because, otherwise, her substantive rights will be prejudiced, and (iv) the husband has acted oppressively.

[8] With respect, I reject all of those arguments. Items (i) and (ii) do not rise to the level necessary to deny to this joint owner husband his prima facie right to have the asset sold. Item (iii) is nonsensical as the mid-May 2021 Court attendance is for another purpose altogether, and there is nothing stemming from the relief being sought that will prejudice the wife’s ability to pursue her property claims at trial (including but not limited to unequal division of net family property). Remember, the husband’s Motion requests that the net proceeds of sale be held in trust. Item (iv) has not been proven on the evidence filed, as the wife’s bald assertions of prior abuse at the hands of the husband are denied by the husband, and it can hardly be characterized as “oppressive” for the husband, years and years after separation, to pursue relief that the wife previously consented to, and consented to more than once.

[9] For these reasons, the husband’s Motion is granted, except for clauses 9 and 10 of the husband’s Amended Notice of Motion dated 31 March 2021. Clause 9 (costs) is subject to the Court’s review of the written submissions from counsel. Clause 10 (other relief) is not applicable.

[10] Order accordingly.

(“Original signed by”)

Conlan J.

Date: April 19, 2021