COURT FILE NO.: FC-19-1751 DATE: 2021/07/07
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Henry Oppong Nketiah Applicant
– and –
Eunice Oppong Nketiah Respondent
Allison Lendor, for the Applicant
Sarah Kennedy for the Respondent at the motion, now represented by Karla Policelli
HEARD: March 30, 2021
REASONS FOR DECISION on motion for sale of family home
somji j.
Overview
[1] The Applicant seeks an order to sell two properties under s. 2 of the Partition Act, RSO 1990, c P.4. The first is a rental property at 117 Harbour View Street, Nepean, Ontario and the second is the family home at 1520 Rangeland Avenue, Greely, Ontario (“Greely home”). The parents own both homes as joint tenants.
[2] The Respondent mother consents to the sale of the rental property and agrees that a portion of the proceeds can be released immediately for the father to purchase a new home where the children can comfortably visit him. This issue is resolved on consent. There will be an order for the sale of the rental property. Each party will be entitled to $150,000 of the proceeds, and the remainder will be held in trust. I address this matter briefly at the end.
[3] The mother opposes the sale of the Greely home where she continues to live with the parties’ four children and her dependent mother. She brings a cross-motion requesting exclusive possession of the Greely home. The mother argues that a forced sale of the Greely home at this time would constitute a hardship for her and the children. She has offered to purchase the father’s interest in the Greely home but to date, he has not accepted her offer.
[4] The father did not plead a claim for the sale of the Greely home under the Partition Act in his original application in 2019. He requested the Greely home be sold or alternatively, that the mother purchase his interest in the home within 60 days. In response, the mother requested exclusive possession of the Greely home and continues to maintain that position. However, between the time of the original application and this motion, the parties divorced. As a result, the father argues the parents are no longer spouses, and the mother can no longer rely on a competing claim under s. 24 of the Family Law Act (“FLA”) for exclusive possession to prevent the sale of the Greely home because s. 24 FLA applies only to spouses: s. 24 Family Law Act, RSO 1990, c F.3.
[5] This motion raises the following issues:
Did the divorce extinguish the mother’s right to rely on s. 24 of the FLA for exclusive possession of the Greely home?
Can the father rely on the Partition Act to compel the sale of the Greely home given he did not plead this in his original claim?
Under the Partition Act, does the court have discretion to refuse the sale of a family home even if the parties are not spouses, and if so, under what circumstances?.
[6] I find that the mother’s right for exclusive possession of the Greely home has been extinguished as a result of the parties’ divorce in June 2020. They are no longer spouses, and the mother cannot rely on s. 24 FLA to claim exclusive possession. Her cross-motion is denied.
[7] The father’s application for the sale of the Greely home pending trial is also denied. The father did not plead the Partition Act in his original application, and even read generously, the pleadings do not indicate a clear intention to compel an interim sale of the Greely home under the Partition Act. If I am wrong on this issue, I find that I have discretion to deny an interim sale of a family home under the Partition Act notwithstanding the parties are no longer spouses. I find there are compelling reasons to deny the sale of the Greely home. The mother has always sought exclusive possession, and it is unclear that she understood her right to exclusive possession would be extinguished upon agreeing to a divorce. In addition, the ownership, financial responsibility, and post-separation arrangements of the parties with respect to the Greely home and other financial matters are contentious and should be resolved as part of the equalization of property before the Greely home is sold. Furthermore, selling the Greely home at this time will constitute a hardship to the mother, the four children, and the grandmother who are presently residing there. Finally, there is no urgency to sell the Greely home. The father will have access to considerable funds upon the sale of the rental property to finance the purchase of a new home. The facts and circumstances of this case are distinguishable from the situation in Chaudry v Chaudry 2012 ONSC 2149 upon which the father relies. The request to sell the Greely home at an interim stage is denied.
Evidence relied on
[8] The parties provided the following material in support of their positions:
The father’s Affidavits dated March 16 and March 25, 2021 and supporting exhibits;
The mother’s Answer dated October 31, 2019 filed as part of the father’s materials; and
The mother’s Affidavit dated March 24, 2021 and supporting exhibits.
[9] To better understand the historical context of this file as well as the circumstances leading up to the divorce, I have also examined the following documents:
The father’s Application dated August 29, 2019 and his amended Application filed June 11, 2020.
The father’s Affidavit in support of Claim for Custody or Access dated August 29, 2019;
The mother’s revised Answer dated October 31, 2019 and filed June 17, 2020.
Justice Labrosse and Fortier’s endorsement of dated November 14, 2019.
Justice Marc Smith’s Divorce Order dated June 26, 2020.
Notice of Change in representation of mother’s counsel dated January 19, 2021.
Position of the Parties re the Greely home
[10] The parties married on July 16, 2005. The mother claims they separated on May 11, 2018 whereas the father claims they separated on September 6, 2018. The parties are biological parents of four children aged 14, 12, 11, and 8. Since separation, the children have been residing with the mother in the Greely home and the father has parenting time every other weekend and one evening per week. The grandmother lives in the Greely home and was living there before separation.
[11] In 2016, the parents purchased the Greely home. The father remained in the home with the mother and children until September 6, 2018. The father acknowledges, in his Affidavit of March 16, 2021, that the parties own the Greely home as tenants in common, with the mother having a 70% interest and the father having a 30% interest. In his affidavit of March 25, 2021, he states that he only agreed to a 30/70 % split to accommodate for additional contributions made by the mother at the time of the purchase of the Greely home. He takes issue with the mother’s request for additional adjustments to their respective shares to the proceeds of the rental property.
[12] The father obtained an appraisal of the Greely home on March 15, 2021. The market value was estimated at $920,000. The mortgage on the Greely home is approximately $475,753.
[13] After the father left the Greely home, he rented an apartment and later moved into his brother’s home in May 2019. He claims the children’s visits were problematic because the mother does not get along with his brother and sister-in-law. He has since moved in with his father. The father states he has parenting time with the kids largely at school and during their activities.
[14] The father was employed on a full-time basis throughout the marriage. In 2020, when the COVID-19 pandemic was declared, he was temporarily laid off. He received CERB at $2,000/month. He continues to pay child support to the mother and claims he has caught up on his child support arrears. His present annual income is between $35,000 and $38,000. The father states he has no savings for a down payment and cannot qualify for a mortgage because he already has two mortgages in his name. He has been waiting two and half years to sell the two properties, but the mother was not cooperative. As a result, he filed this motion.
[15] The father argues that he is entitled to the sale of the Greely home as a joint tenant pursuant to s. 2 of the Partition Act. His counsel argues that any competing claim under the FLA for exclusive possession of the Greely home by the mother does not apply now that the parties are divorced and the Greely home is no longer a matrimonial home.
[16] The mother disputes the father’s version of events. She states that she is not resisting access. On the contrary, she welcomes parenting time and co-parenting. She claims the father has often failed to show up for visits with the children, and they do not want to go their uncle’s home because of the hostile environment of the father’s family.
[17] The mother states that contrary to the father’s assertion, there has not been a lengthy refusal to sell the rental property. An agreement was reached to sell the rental property before the motion proceeded and she supports the father having immediate access to a portion of the proceeds.
[18] The mother explains in her Answer that the father goes to Ghana twice a year. She claims he has repeatedly borrowed money and used credit to invest in businesses and property in Ghana and has not declared these assets on his Financial Statement. She claims he has borrowed from the rental property line of credit against her wishes. The mother has requested disclosure of the father’s property interests in Ghana which he maintains he does not have.
[19] The mother is a government employee and earns approximately $90,000/year. She takes the position that the father has altered his employment to reduce his income for support purposes. In 2018, his income was $71,693.57 whereas in August 2019, he reported income of $27,600. The four children are involved in many activities. The mother states that the father has not contributed to the children’s extraordinary expenses.
[20] The mother requests this Court deny an interim sale of the Greely home pursuant to the Partition Act, and, instead, grant her exclusive possession of the Greely home pending trial. This has been the family home since 2016. To move the children from their present home and community would constitute a significant disruption to the family.
[21] The mother recognizes that the father has limited financial means and that he needs money for a down payment. The mother has offered to purchase the father’s share in the Greely home estimated at $133,274 based on the appraised value of the house as of March 2021. While the mother finds the appraised value a little high, she accepts the market value assigned and has not sought an alternative appraisal. The father refused her offer to purchase his interest.
[22] The parties’ negotiations as it relates to the sale of the Greely home are in dispute. According to the mother, the father obtained an appraisal of the Greely home and requested the mother make an offer to purchase his interest, which she did at the above-noted price. The father then changed his mind and asked that a sum of $100,000 be added to the value of the home in determining the buyout price, failing which he requested the Greely home be listed and sold immediately: Email from Counsel for the mother dated March 24, 2021, Exhibit B to the Mother’s Affidavit.
[23] Counsel for the father states that the father has always maintained his position requesting a sale of the Greely home as per his Notice of Motion: Response email from Counsel for the father dated March 24, 2021, Exhibit B to the Mother’s Affidavit. The father needs the equity from the Greely home to finance a new home and should be entitled to his equity as determined by a fair market sale of the home: Copeland v Copeland, 2017 ONSC 4475 at paras 23 to 25.
[24] On the motion hearing date, the father had not accepted the mother’s offer to purchase his interest in the Greely home. While she understands the home may be sold eventually, she does not understand why he insists on displacing her and the children at this time, particularly given the fact that from a buyout, he would obtain funds immediately. This along with the funds from the sale of the rental property would provide him considerable funds to finance a new home for himself. The mother states in her Affidavit at para 27 that the father’s conduct is motivated by spite:
Put very bluntly, Henry is perfectly willing to put our children through hell for $133,000.00, which he won't have immediate access to in any case. He would, in fact, apparently much prefer to do that than to actually receive the roughly equivalent sum from me, now, for his immediate use. I can think of absolutely no logical reason for this. This proposal results in no real advantage to Henry, but in much real harm to me and to our four children. I strongly suspect that this is precisely Henry's goal.
Issue 1: Did the divorce extinguish the mother’s right to rely on s. 24 of the FLA for exclusive possession of the Greely home?
[25] Section 18 of the FLA defines a matrimonial home as a property in which a person has an interest and that is, or was, at the time of separation, ordinarily occupied by the person and his or her spouse as their family residence. At the time the parties separated, whether the date was May or September 2018, they were sharing the Greely home as a family residence. The parties, grandmother, and four children were all living there at the time of separation. I find on the plain reading of s. 18 of the FLA, the Greely home constituted the matrimonial home (“MH”) at the time of separation.
[26] Either spouse may make a temporary or permanent claim for exclusive possession of the MH under s. 24 of the FLA. The term “spouse” is defined under s. 1 of the FLA as two persons who are married to each other. On that basis, both parties were entitled to make a claim for exclusive possession of the Greely home pursuant to s. 24 of the FLA, and in fact, both parents made a claim for exclusive possession of the Greely home in their original pleadings. The mother continues to maintain that claim.
[27] The father commenced an action on September 10, 2019 seeking a divorce, joint custody of the children, access, equalization of assets, and the sale of family property or alternatively, a purchase of his interest. The father also sought an order for divorce and stipulated that corollary relief issues could be severed from the divorce if necessary: Father’s Application
[28] In her Answer of October 31, 2019, the mother sought sole decision-making responsibility, parenting time for the father, and child support for the children. Like the father, she requested a sale of the rental property. She requested exclusive possession of the Greely home as an MH and a claim for unequal division of family property since the parties owned the MH as tenants in common with the mother having a 70% share and the father having 30% share.
[29] The father claims the Greely home lost its characterization as an MH when the parties divorced in June 2020. Counsel for the father relies on the decision of Mackinnon J in Chaudry v Chaudry, 2012 ONSC 2149. In Chaudry, Mackinnon J stated that a home may lose its status as a matrimonial home upon divorce and ordered the interim sale of a family home pursuant to s. 2 of the Partition Act.
[30] Although the father relies on the divorce to argue the mother no longer has a right to make a statutory claim for exclusive possession under s. 24 of the FLA, the father did not file the Divorce Order as an exhibit in this proceeding. In fact, neither party even referred to the divorce in their affidavits and the effect of the divorce on their various requests for relief in this motion.
[31] On June 29, 2020, Justice Marc Smith issued a Divorce Order. The Divorce Order states that “All corollary relief issues are hereby severed from the divorce.” Filed with the Divorce Order were also Minutes of Settlement that addressed disclosure, updated financial statements, the father’s right to amend his pleadings to claim spousal support, the father’s parenting time, and child support. The Minutes of Settlement were silent on each of the parties’ requests for exclusive possession of the Greely home as a matrimonial home in their original pleadings.
[32] Counsel states that the father has always taken the position that the Greely home should be sold. I disagree. In the father’s original Application, the father sought sale of the Greely home or, in the alternative, an order requiring the mother to purchase his interest within 60 days of his Application. The father also asked the mother to vacate the Greely home and for himself to have temporary exclusive possession of either the rental property or the Greely home as a matrimonial home. Upon review of the pleadings and exhibits on this motion, I find the father was open to the mother purchasing his interest in the Greely home and discussed this possibility with her.
[33] The mother claimed exclusive possession of Greely home in her original pleadings and continues to maintain that position, notwithstanding that the parties are now divorced. Her present affidavit is silent on the consequent effect of the divorce on her right to exclusive possession which forms the basis of her cross-motion. This suggests the mother may not have understood that her claim for exclusive possession would be extinguished upon divorce. Counsel for the mother did not address this issue, but I note that it may be because the mother had different counsel at the time of the divorce then she did on this motion: Notice of change in representation of mother’s counsel dated January 19, 2021.
[34] The father’s argument that the right to exclusive possession of a matrimonial home is extinguished upon divorce is supported by the decision of the Court of Appeal for Ontario in Miller v Miller, 1996 729 (ON CA), [1996] 89 OAC 187, 20 RFL (4th) 191. In that case, the Court ruled that a judge only has jurisdiction to make an order for exclusive possession under the FLA when the parties are in a spousal relationship, or unless preserved by a separation agreement or a court order. The equal right to possession of a matrimonial home is only available to a spouse as defined in the FLA, which is someone who is married; it is not available to a former spouse: Miller at p 198.
[35] Therefore, I do not have jurisdiction to make an order granting the mother exclusive possession of the Greely home under the FLA. Her cross-motion is denied.
[36] However, the unavailability of a legal claim for exclusive possession of a matrimonial home pursuant to s. 24 of the FLA does not preclude me from considering if the Greely home should be compelled for immediate sale under s. 2 of the Partition Act. The Court of Appeal went on to rule in Miller that, following a divorce, a spouse may still have a remedy to remain in the home despite a request for sale under s. 2 of the Partition Act.
[37] As discussed below, a judge has a narrow discretion to refuse the sale of a home under s.2 of the Partition Act belonging to joint tenants. In exercising that discretion, the court must examine a number of factors including the potential hardship to the tenant resisting the sale. Before addressing the issue, I will first address whether the failure of the father to plead the Partition Act is grounds to dismiss his claim for interim sale of the Greely home.
Issue 2: Can the father rely on the Partition Act to compel the sale of the Greely home given he did not plead this in his original claim?
[38] While the father brings this motion to compel the sale of the Greely home under s. 2 of the Partition Act, he did not plead this in his original Application. The father was granted leave to amend his application to add a claim for spousal support and to correct the separation date in November 2019, but did not amend his Application to plead for interim sale of the Greely home under the Partition Act: Endorsement of Master Fortier and Justice Labrosse dated November 14, 2019 and father’s Amended Application filed June 11, 2020.
[39] Counsel for the mother argues that the failure to plead the Partition Act can be grounds to deny the sale and relies on the decision in Kereluk v Kereluk, (2004), 2004 34595 (ON SC), 9 R.F.L. (6th) 385 (Ont. S.C.), 2004. In Keruluk, the parties separated after a nine year marriage and the mother sought an order for sale of the matrimonial home pending trial. The husband remained in the home and wished to purchase the mother’s interest in the home to give stability of continued residence to their child. Upon reviewing the law on whether the court could compel the sale of a matrimonial home pending trial, Polowin J concluded that the court had no jurisdiction to partition and sell a matrimonial home pending trial. Polowin J also noted that the mother had failed to plead the Partition Act and had not brought the interim motion pursuant to that Act, and technically this could end the matter: Kereluk at para 20. Nonetheless, Polowin J, stated that even if the wife had applied pursuant to the Partition Act, she would not have granted the order for sale as it would have left the father paying more than he would have after determination of equalization of property.
[40] Similarly in Mignella v Federico, Price J noted that the father had not applied for sale pursuant to the Partition Act, but that even if he had applied, he would have exercised his discretion to deny the sale of the property pending trial as it would prejudice the spouse’s right to assert an ownership or possessory interest in the property at trial: Mignella v Federico 2012 ONSC 5696 at paras 32 and 33.
[41] I find Kereluk and the similar decision of Mignella are not helpful authorities on the impact of the failure to plead the Partition Act. While the motion judges in Kereluk and Mignella both referenced the failure of the moving party to plead the Partition Act as a possible “technical” ground upon which to dismiss the claim, both judges proceeded to consider the merits of the claim. Furthermore, in both cases, the motion judges refused the sale of the matrimonial home under the Partition Act pending trial on the basis that the resisting spouse had a competing ownership or possessory interest under the FLA that should first be resolved at trial whereas in this case, the father argues the parties are no longer spouses and therefore, the mother does not have a possessory right to the Greely home under the FLA.
[42] I prefer to rely instead on the approach set out by the Ontario Court of appeal in Healthy Lifestyle Medical Group Inc. v. Chand Morningside Plaza Inc., 2019 ONCA 6 [“HL v Chand”]. In that case, the Ontario Court of Appeal ruled that motion judges must read pleadings generously to allow for drafting deficiencies, particularly where a party pleaded facts sufficient to support a cause of action or a defence but did not specifically mention the cause of action of the defence in question: HL v Chand at para 20. The Court ruled that the appellant’s amended statement of defence read generously did plead a defence of “no consideration” and the motion judge should have considered it a genuine issue for trial before granting summary judgment in favour of the respondents: HL v Chand at paras 3 and 8. The Court overturned the decision, granted the parties leave to amend their statement of claims, and remitted the matter for trial on all issues: HL v Chand at para 10.
[43] Upon reading the father’s pleadings generously, I find they do not set out the father’s intention to argue the sale of the Greely Home pursuant to s. 2 of the Partition Act. First, there is no reference in the original Application (August 2019) or the father’s Amended Application (filed June 11, 2020) that he is seeking an interim sale of the Greely home under the Partition Act. This is significant factor in these circumstances because the father has known from the outset that the mother wished to remain in the home with the children and was seeking exclusive possession. There was nothing to alert the mother or her counsel that the Partition Act would be relied on to compel an interim sale, and as a result, the mother should carefully consider whether to divorce and surrender her spousal right to claim exclusive possession under the FLA pending trial.
[44] Second, contrary to counsel’s submissions, I do not accept it was always the father’s intention to sell the Greely home. As explained earlier, in his Application, the father requested either a sale of the Greely home or alternatively, the mother to purchase his interest within 60 days. While it was a time-limited offer, it is clear from the parties’ affidavits and counsel emails that discussions around the mother purchase of the father’s interest have been ongoing and into the spring of 2021.
[45] If I am wrong on this issue and the pleadings read generously do assert a clear intention for the sale of the Greely home, I find I do have discretion to refuse the sale of a home under the Partition Act on an interim motion and there are compelling reasons to do so in this case.
Issue 3: Under the Partition Act, does the court have any discretion to refuse the sale of a family home even if the parties are not spouses, and if so, under what circumstances?
[46] Section 2 of the Partition Act stipulates that all joint tenants or tenants in common may be compelled to partition or make a sale of all or a portion of land.
[47] Under the Partition Act, a joint tenant has the prima facie right to an order for the partition or sale of lands jointly held with another tenant and that tenant has a corresponding obligation to permit that sale: Steele v Doucet, 2020 ONSC 3386 at paras 80-81.
[48] The right to partition is not an absolute one. It is subject to the exercise of discretion by a court: Davis v Davis (1953), 1953 148 (ON CA), [1954] OR 23 (CA). A court is required to compel a sale of jointly held land if no sufficient reason can be shown why such an order should not be made: Steele v Doucet, 2020 ONSC 3386 at paras 80-81. Dhaliwal v. Dhaliwal, 2020 ONSC 3971 at para 16. That reason might include a competing claim under the FLA for exclusive possession of a matrimonial home: Silva v Silva (1990) 1990 6718 (ON CA), 1 OR (3d) 436 (CA) at para 23. However, where the tenants of the property are not spouses, courts also have a narrow discretion to deny a sale that is malicious, vexatious, or oppressive: Steele at para 83, citing Silva v Silva. See also Kaing v Shaw, 2017 ONSC 3050 at paras 23-24, citing Latcham v Latcham (2002), 24 RFL (5th) 358 (Ont CA).
[49] Each case must be considered on its own facts and circumstances: Steele at para 82; Davis at p 830. The onus is on the tenant resisting the sale to show there is a sufficient reason why the sale should not be ordered: Steele at para 82; Dhaliwal at para 16.
[50] Oppression has been found to properly include hardship not only on the tenant resisting sale, but on the children in the person’s care who would be directly affected by a forced sale: Kaing v Shaw at paras 30-33. In Kaing, the family home was not a matrimonial home because the tenants were not married, and hence, the mother could not rely on the right of exclusive possession under the FLA as a competing claim to defer sale of the home under the Partition Act. However, the court found that the sale of the home was oppressive in that its immediate sale would constitute a hardship for the mother and children. The immediate sale of the home would be disruptive to the lives of the children and would uproot them from their relatives, friends, school, daycare and community. The mother was also not able to obtain reasonable alternative accommodation. The court exercised its discretion to refuse the sale of the family home under s. 2 of the Partition Act.
[51] I am mindful, however, that the children’s attachment to a home and its proximity to their school and community is not, in and of itself, a sufficient basis to deny the sale of a family home: Delongte v Delongte 2019 ONSC 6954 at paras 38 and 40. The weight to be given to hardship on a family upon interim sale of a family home will vary from case to case depending on the factual circumstances of the family, children, and home: Yale v MacMaster (1974), 1974 636 (ON SC), 3 OR (2d) 547 at paras 36 and 37.
[52] In advocating the father’s position, counsel for the father relies on the case of Chaudry. In Chaudry, Mackinnon J found the mother could not claim exclusive possession of the matrimonial home where she was living with her disabled adult child because it had lost its status as such by reason of divorce: Chaudry at para 22. Mackinnon J ordered the sale of the matrimonial home prior to trial because she found there were no competing right under the FLA and the mother had not provided any other sufficient reason to deny the sale.
[53] I find that Chaudry is distinguishable from the facts here, and that there are several compelling reasons to deny an interim sale of the Greely home in this case.
[54] First, in Chaudry, the parties were divorced in 2008 and the application for equalization of net family property and other relief was made after the divorce. Here, the mother pled that she was seeking exclusive possession of the MH and, two years later, she continues to maintain this claim, notwithstanding there was a divorce in the intervening period. The question which arises is what happened in June 2020 when the divorce transpired, and was the mother aware of the resulting prejudice to her right of exclusive possession upon divorce? It may have been that the issue was not contemplated given, as counsel for the mother points out, the father never pled in his Application that he was seeking a sale of the MH under the Partition Act: Kereluk v Kereluk, 2004 34595 (Ont SC) at para 8. In short, unlike in Chaudry where the parties were clearly divorced before the claim for exclusive possession was first made, there remains a live issue in this case as to whether the mother understood her right to exclusive possession under the FLA would be extinguished upon divorce. I find that to compel a sale at this time in the absence of additional evidence on this issue and which may require credibility findings at trial, is unjust and warrants the exercise of my discretion in the mother’s favour.
[55] Second, in Chaudry, the mother did not have funds to purchase the father’s interest in the sale of MH and it was unlikely that she would have sufficient funds to make a reasonable offer of purchase of the father’s interest even after trial and a determination of an equalization payment. This was an important factor for the judge in exercising her discretion in favor of the sale at an interim stage: Chaudry at para 25: In this case, not only does the mother have the funds to purchase the father’s interest in the home, she put forward an offer to purchase with a cheque payable of the amount to be provided within 30 days after the father obtained an appraisal of the property in March 2021. Based on her counsel’s correspondence, this was done at the request of the father who later changed his mind and asked for an additional sum of $100,000 over and above his 30% share. It is unclear from this correspondence as well as the father’s own Affidavit dated March 25, 2021 at para 6, where he discusses the 30/70% split, whether the parties respective share in the Greely home as joint tenants is in dispute and needs to be further litigated at trial.
[56] Third, I find that the issues surrounding the equalization of property should be resolved at trial and before compelling a sale of the Greely home under the Partition Act. The mother takes issues with the father’s disclosure of his financial circumstances and has requested disclosure of his financial interests in properties in Ghana which he denies having. Furthermore, notwithstanding that the father is paying Table child support in accordance with his present income, support for the children is an ongoing issue.
[57] Fourth, in Chaudry, the applicant was 68 years of age, required money to retire, and had no other source of income. Here, the father will be receiving $150,000 from the immediate sale of the rental property alone which would assist him in financing the purchase of a home.
[58] Fifth, in Chaudry, the respondent father had been waiting at least 4 years to resolve the conflict over the MH, during which time the applicant mother had not completed her financial disclosure and had failed to make an offer to purchase the father’s interest in the home. In this case, the litigation began two years ago. Despite COVID-19 and changes in counsel, the matter has been moving forward. There was a case conference, issues of disclosure were resolved, a parenting agreement was reached, and a divorce was ordered. Unlike in Chaudry, I do not accept the father’s argument that the mother is intentionally delaying matters. She has complied with disclosure, negotiated an agreement on parenting time, provided a pension valuation, agreed to appraisal of the properties, and made an offer to purchase the father’s interest in the property.
[59] Sixth, the mother is not being unjustly enriched pending trial. Unlike in the cases of Dhaliwal and Delongte where the moving party was seeking the sale partly because they could no longer sustain monthly payments of the family home, here the mother has been making all the mortgage, insurance, and utilities’ payments on the Greely home without any contribution by the father. While the father alleges that there was an arrangement where the mother would pay the mortgage on the Greely home and he would pay for the mortgage on the rental property, the mortgage of the rental property is largely covered by the income of the tenants: Father’s Affidavit dated March 25, 2021 at para 6. Moreover, both parties have failed to pay property taxes which have accumulated on both the rental property and the Greely home.
[60] Finally, I find that the immediate sale of the Greely home would constitute a hardship to the mother. The mother resides at the home with the family’s four children and her dependent mother. The children go to school and are well settled in the area. Finding a comparable home for a family of this size within the neighbourhood and relocating the entire family, particularly in the current COVID-19 pandemic, will constitute a major disruption to the family. While this disruption to the family unit alone might not be sufficient to deny the sale of the Greely home, when considered with the reasons cited above, I find there are sufficient reasons to deny the interim sale of the home under the Partition Act pending resolution of the family matters.
[61] The father’s application to sell the Greely home is denied.
[62] The mother indicates in her Affidavit that she understands the Greely home may have to be sold eventually. She is correct. Even following trial, this Court cannot order one party to be given a right of first refusal with respect to the sale of a jointly owned property: Martin v Martin, 1992 7402 (ON CA), [1992] 8 O.R. (3d) 41; McNeill v McNeill 2020 ONSC 1225 at para 25 to 27. The father is entitled to obtain the highest price for his interest in the properties: Buttar v Buttar, 2013 ONCA 517 at para 63. If the father does not agree to the mother’s offer to purchase his interest and, he appears to have disregarded the offer to date, the mother may have to bid on the home if ordered to be listed for sale: Steele at para 160; Allan v Dabor, 2017 ONSC 5452 at para 13, citing Dibattista v Menecola (1990), 75 OR (3d) 443 (CA) at para 18. Until that time, the parties are free to negotiate a resolution over the Greely home and I would encourage them to do so.
Other issues
A. Disclosure of the mother’s pension valuation?
[63] The father seeks an order that the mother provide the actuarial valuation of her pension with the Government of Canada. The mother provided the valuation several days before the motion hearing. A copy of the valuation was attached as an exhibit in these proceedings. This mother understood the issue was resolved.
[64] The mother relied on the separation date of May 11, 2018, which is when she claims the father left the matrimonial bed and the parties’ relationship was no longer reconcilable. The father claims that the separation date is when he left the Greely home in September 2018. The father now seeks a re-evaluation of the pension dated based on a separation date of September 6, 2018.
[65] The date of separation date remains in dispute and requires additional evidence and/or credibility findings. However, for the purposes of finalizing disclosure, there will be an order that the mother provide a pension valuation based on separation date of September 6, 2018.
B. Sale of the rental property
[66] The rental property was purchased by the parties as joint tenants in 2005. It was originally the parties’ matrimonial home, but in 2016, the parties moved out and went to live in a new home they purchased which was the Greely home. The rental property generates a monthly income of $1,550 of which $1,350 goes to the mortgage and the remainder is to pay for property taxes.
[67] The market value of the rental property is $640,000, based on an appraisal done on March 15, 2021. The mortgage on the property is $241,508. Upon the sale of the rental property at the present market value, it is expected that the parties will be entitled to approximately $199,246, minus expenses related to the sale and fees. The father points out that it is possible that the parties could receive slightly more for the sale of the rental property given Ottawa’s housing market.
[68] The father seeks to sell the rental property and the mother agrees. On consent of the parties, there will be an Order with the following terms and conditions proposed by counsel:
The parties shall list the rental property municipally known as 117 Harbour View Street, Nepean, Ontario K2G 6Z8 for sale.
The parties shall jointly engage the service of a real estate agent to list the property and shall cooperate with all listing suggestions and directives made by the agent. To that end, the parties shall engage the services of Mr. Khalid Malik, an agent with Coldwell Banker, if he is willing and available to act in that capacity. If Mr. Malik is unable or unwilling to act as the listing agent, then the parties shall mutually agree on another real estate agent within 7 days from the date when the parties are advised that Mr. Malik cannot act.
The parties shall retain a jointly selected solicitor for the transfer within 30 days of this Order and, in the event that they are unable to agree, the Applicant will select the solicitor. Neither party will give the solicitor instructions contrary to this Order.
[69] The father proposes in his draft Order that each party obtain retain $100,000 from the proceeds of sale. However, given the father’s need for a new home that can comfortably accommodate four children during his parenting time, there will be an order that the parties can each access $150,000 from the proceeds of sale of the rental property after payment of outstanding property taxes and legal fees. The remainder will be held in trust. There will be an Order that:
The parties shall each receive an interim disbursement of $150,000.00 from the net proceeds of the sale of the Harbour View property. The remainder of the net proceeds from the sale shall be held in trust by the parties’ real estate solicitor pending final distribution through a written agreement between the parties or further order of the court.
This interim disbursement is without prejudice to either party seeking further post-separation adjustments, which will be dealt with through further negotiation or by order of the Court and, if there are any, they shall be accounted for in the final determination of the property issues before the remainder is disbursed to the parties.
Costs
[70] The mother is the successful party on this motion. The mother was successful on whether there should be a sale of the Greely home under the Partition Act. At the time of the motion hearing, the mother had consented to the sale of the rental property and had disclosed her pension valuation, albeit just a few days earlier. The mother was entitled to rely on the date of separation in the pension valuation as she understood it. There was no need to litigate either of these issues.
[71] If the parties are unable to settle the issue of costs, costs submissions can be filed. They shall not exceed two pages, exclusive of the Bills of Costs and Offers to Settle. The mother shall file her submissions by July 30, 2021, the father by August 13, 2021, and the mother will have until August 20, 2021 to reply. Please email the submissions to scj.assistants@ontario.ca and to my attention.
Released: July 7, 2021 Somji J.
COURT FILE NO.: FC-19-1751 DATE: 2021/07/07
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Henry Oppong Nketiah Applicant
– and –
Eunice Oppong Nketiah Respondent
REASONS FOR DECISION ON MOTION FOR SALE OF FAMILY HOME
Somji J.
Released: July 7, 2021