Court File and Parties
COURT FILE NO.: FS-20-97123-00
DATE: 2021 06 02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: EVERALD SMALL – and – PATRICIA M. SMALL
BEFORE: Daley J.
COUNSEL: Nickolas Grunow-Harsta, for the Applicant Leroy Crosse, for the Respondent
HEARD: May 27, 2021, via video conference
ENDORSEMENT
[1] The applicant father seeks an order for the immediate sale of the matrimonial home, along with other ancillary relief related to the sale and an order that $100,000 of the net proceeds of sale be released to each of the parties upon the closing of the sale of the matrimonial home with the remaining net proceeds to stand in trust pending further agreement of the parties or further order of the court.
[2] The respondent wife, who resides in the matrimonial home, opposes the sale of the home and it was further submitted on her behalf that this motion should be heard after another scheduled motion in June, 2021, where the applicant is seeking temporary custody/access and support with respect to the parties’ children.
[3] The respondent raises this as a preliminary objection on the basis of the order of Price J. of January 19, 2021, which had set out a timetable for several motions to be brought, the last of which was to be the present motion for the sale of the matrimonial home which, was originally to be returnable on April 1, 2021. There is no explanation provided as to why the series of motions referred to in that order did not proceed on the schedule as had been directed.
[4] I have considered the reasons for decision of Price J with respect to his order of January 19, 2021 and there are no expressed reasons for the order in which the motions were to be brought and as such I cannot conclude that the present motion for the sale of the matrimonial home should be brought after the presently pending motion with respect to temporary custody/access and support.
[5] As to the material considered on this motion, I reviewed the affidavit of the applicant dated April 16, 2021, the respondent’s affidavit of May 19, 2021 and the applicant’s reply affidavit of May 20, 2021. In addition, counsel for the applicant filed a factum.
[6] Counsel for the respondent sought leave to file a late affidavit along with a factum, however as no reasonable explanation was offered as to the delay in serving and attempting to file these materials, I did not allow the late filing of these materials. I invited counsel to supplement his submissions and refer me to any cases he felt were necessary in my review of this matter which might otherwise have been considered in his factum. During the course of his submissions he did as I suggested.
Evidentiary Record:
[7] By way of background, the applicant and the respondent are 52 years old and 54 years old respectively. The applicant is employed as a forklift operator with an annual income of approximately $37,500.
[8] The respondent is currently unemployed and receiving unemployment benefits of $1,000 biweekly and she is currently looking for employment. Previously she had been employed with Allstate Insurance Company and the record shows that as per her financial statement of March 4, 2020 she earned an annual income of $66,996.
[9] The parties have two children namely Zacane Small (Zacane) Born November 13, 2008 (age 12) and Savannah Small (Savannah) born September 25, 2004 (age 16). The children have their principal residence with the respondent in the matrimonial home. The evidence also shows that Zacane suffers from mild autism.
[10] There is a dispute as to when the parties separated; the applicant stating that this occurred on July 11, 2018 whereas the respondent states that they separated on April 15, 2014.
[11] Following the parties’ marriage in June 2004, in December 2005 they purchased the matrimonial home as joint tenants that being the property located at 73 Maddybeth Crescent, Mississauga. The applicant moved out of the matrimonial home in July 2018.
[12] It is the applicant’s evidence that he has requested that the respondent agree to the sale of the matrimonial home and that she has refused to do so.
[13] Currently there is a mortgage registered against this property in the approximate sum of $173,222.07. The respondent has previously declared in her financial statement of March 4, 2020 that the home has a value of $824,000 and she has since obtained an appraisal of the property as of July 2018 to be at a value of $750,000.
[14] Given the current state of the real estate market in southern Ontario, and given the evidence as to comparable properties contained in the affidavit material submitted on behalf of the applicant, it is reasonable to conclude that this property would likely have a sales price in the order of $1 million and taking into account the current mortgage outstanding there would remain equity in the order of $826,777.93, which would be shared equally by these parties.
[15] The applicant has filed a Net Family Property Statement which shows that the respondent will owe him an equalization payment of $31,564.67 and on that basis the applicant seeks an order that following the sale of the matrimonial home each of the parties receive $100,000 out of the net sale proceeds with the remaining monies to be held in trust.
[16] Since leaving the matrimonial home, it is uncontradicted in the evidence, that the applicant has lived in a basement apartment, while the respondent and the children have remained in the matrimonial home. The main asset held by these parties is the matrimonial home and I accept as a fact that the applicant has had little opportunity to save money after the payment of rent and other expenses.
[17] The respondent opposes the sale of the matrimonial home and it was urged on her behalf by her counsel that she and the children be allowed to remain in the home until the youngest child, Zacane, reaches the age of 21 or completes his post secondary education.
[18] In her affidavit evidence, the respondent largely raises issues concerning alleged assault and abuse by the applicant as well as accusations that the applicant has had little involvement in the children’s lives. She makes various allegations concerning bad parenting on the part of the applicant.
[19] Notably, the respondent offers no evidence that the applicant has behaved maliciously, or oppressively or with the vexatious intent towards her as would relate to the matrimonial home. Furthermore, while the youngest child has been diagnosed with a form of autism and Savannah with a form of ADHD, there is no evidence that the welfare and safety of these children would be adversely affected by the sale of the matrimonial home.
Legal Framework & Analysis:
[20] A joint tenant has a prima facie the right to an order for partition and sale of a property, including a matrimonial home in accordance with sections 2 and 3 of the Partition Act, RSO 1990, c. P.4.
[21] Unless the joint tenant party opposing the sale can demonstrate that there is malicious, vexatious or oppressive conduct on the part of the moving party seeking the sale of the matrimonial home, the court’s discretion should be exercised in favour of the moving party requiring the sale of the property: Marchese v. Marchese, 2019 ONCA 116, at para 5.
[22] Other considerations must be examined, when the court is exercising its discretion on such a motion, including whether or not there has been a final determination of the spouses’ claims under the Family Law Act, R.S.O. 1990, c. F.3, including equalization of net family property. Questions of prejudice to the parties must be considered.
[23] Further, concern as to the adverse effects the sale of the matrimonial home may have on the parties’ children also should be examined. Here there is no evidence that the sale of the matrimonial home would have a harmful effect on the children and there is no reasonable basis for accepting the respondent’s submission that she and the children should be allowed to remain in the matrimonial home until the youngest child reaches at least 21 years of age.
[24] Where, as is the situation in this case, there is substantial equity in the matrimonial home, as the largest asset held by these parties, I cannot reasonably infer that the respondent would suffer any financial prejudice were the matrimonial home to be sold and the majority of the net proceeds of sale be held in trust until the parties’ equalization payments can be determined. There is no evidence in the record that would support any conclusion of prejudice to the respondent.
[25] Furthermore, while the respondent makes allegations with respect to alleged abusive behaviour on the part of the applicant and also asserts that he has not been a suitable parent to the children, I cannot find any evidence that would lead me to conclude that his conduct in any way he approaches malicious, oppressive or vexatious conduct towards the respondent in the context related to the matrimonial home: Silva v. Silva, 1990 CanLII 6718 (ON CA), [1990] O.J. No. 2183; Bailey-Lewis v. Lewis, 2020 ONSC 7525 at paras 15 – 19; Nolan v. Nolan, 2017 ONSC 4465; Conforti v Conforti, 2021 ONSC 1767.
[26] Having considered all the evidence adduced and the circumstances of these parties and the jurisprudence relevant to the discretion exercised under the Partition Act, I have concluded that the applicant’s motion must be granted.
[27] In addition to these considerations, other factors that have led me to this conclusion include the fact that the parties have been separated for several years, the applicant contributed to the purchase of the matrimonial home, he has been seeking the respondent’s cooperation in the sale of the home for several years and given his current financial situation he is incapable of financing the purchase of a new home for himself. Further, there has been no proposal from the respondent that she wished to buy out the applicant’s interest in the matrimonial home. Finally, the applicant has agreed to pay any post separation adjustments with respect to the operational costs of maintaining the matrimonial home.
[28] In the result, an order shall issue in the following terms:
An Order that the matrimonial home located at 73 Maddybeth Crescent, Brampton, Ontario, L6Y 5R6 shall be listed for sale forthwith (within 14 days) and have a closing of no later than August 15, 2021, with any agent at Re/Max Mississauga, and with the usual reference and accounting, pursuant to s. 9 of the Family Law Act and sections 2 and3 of the Partition Act, R.S.O. 1990, c. P-4;
An Order that the signature of the Respondent/Wife, Patricia M. Small ("Respondent/Wife") on the listing agreement with Re/Max Mississauga be dispensed with, if required;
An Order compelling the Respondent/Wife to provide a key to the matrimonial home to the Applicant/Husband, Everald Small ("Applicant/Husband") or the real estate agent with Re/Max Brampton forthwith;
An Order that the Respondent/Wife provide access to the matrimonial home to the real estate agent with Re/Max Mississauga between the hours of 9:00 a.m. and 9:00 p.m. every day for the purpose of an inspection and to take measurements as well as showing the home to prospective purchasers and/or real estate agents;
An Order that the Respondent/Wife keep the home, both inside and outside, in a tidy state pending the sale of the matrimonial home;
An Order that the signature of the Respondent/Wife on any Agreement of Purchase and Sale that is acceptable to the Applicant/Husband be dispensed with, if required;
An Order requiring the Respondent/Wife to pay for all of the carrying costs of the matrimonial home pending the sale thereof, including but not limited to: monthly mortgage payments, taxes, utilities, insurance, repairs and maintenance, and to provide to the Applicant/Husband with evidence that these expenses have been paid and are up to date;
An Order that the signature of the Respondent/Wife on any or all closing documents or transfer documents be dispensed with, if required;
An Order that the Applicant/Husband be permitted access to the matrimonial home in order to locate and identify the personal property owned by him and the parties' jointly owned personal property;
An Order that $100,000.00 of the net proceeds of sale be released to each of the Applicant/Husband and Respondent/Wife upon the closing of the matrimonial home (i.e. that a cumulative total of $200,000.00 be released from the net proceeds of sale), and that the remainder of net proceeds be held in trust the unless the parties agree otherwise or a court orders otherwise.
[29] As to the costs of this motion, counsel for the applicant shall serve and file cost submissions of no longer than two pages, plus a costs outline within 15 days from the date of release of these reasons. Counsel for the respondent shall file similar submissions within 15 days thereafter. No reply submissions are to be filed without leave
Daley, J.
Released: June 2, 2021
COURT FILE NO.: FS-20-97123-00
DATE: 2021 06 02
ONTARIO
SUPERIOR COURT OF JUSTICE
EVERALD SMALL
Applicant
- and -
PATRICIA M. SMALL
Respondent
ENDORSEMENT
Daley, J.
Released: June 2, 2021