COURT FILE NO.: FS-20-25 (Milton)
DATE: 20210707
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Alan Haaksma
Applicant
-and-
Elise Charlotte Anne Taylor
Respondent
Alan Haaksma, acting in person
Ursula Cebulak, for Ms. Taylor
Heard: March 31, 2021 by video conference
Chown J.
ENDORSEMENT
[1] Prior to commencing an application for divorce, the “applicant” Alan Haaksma made a request for an urgent motion. An urgent case conference was conducted by Justice Kurz. Settlement discussions ensued and minutes of settlement were reached over a parenting schedule. The parties also agreed to participate in mediation. It was further agreed that Mr. Haaksma would not be required to file his application prior to the mediation.
[2] Mr. Haaksma subsequently put his lawyer “on abatement” and became self-represented. The mediation did not proceed. Mr. Haaksma did not proceed to file his application with the court. Ms. Taylor was unable to file her answer or advance this matter.
[3] A further case conference was conducted by Justice Andre on November 25, 2020. Justice Andre ordered that Mr. Haaksma file his notice of application by December 31, 2020. He also ordered that Mr. Haaksma provide a Form 13.1 financial statement, his income tax returns of 2017, 2018 and 2019 and his notices of assessment for these years. Mr. Haaksma was also ordered to provide a letter indicating that he is no longer employed with Evident.
[4] As at the date of the hearing of this motion, Mr. Haaksma had not complied with these orders.
Filing Application and Providing Financial Disclosure
[5] Ms. Taylor’s motion seeks an order compelling Mr. Haaksma to comply with Justice Andre’s order. In the alternative, Ms. Taylor requests an order that she be entitled to file a notice of application and that she become the applicant.
[6] Before me, Mr. Haaksma agreed to file his application and to provide a Form 13.1 financial statement. He advised he had not prepared his tax returns for these years and doing so is complex. This is not an adequate answer. Even if his tax returns have not been prepared, and even if his financial circumstances are complex, there is much he could do to disclose his financial circumstances.
[7] I had the court file reviewed today, July 7, 2021, and determined that Mr. Haaksma still has not filed his application or Form 13.1 in accordance with Justice Andre’s order.
[8] Under rule 13(1), Mr. Haaksma will not be able to file his application without his financial statement unless he obtains an order dispensing with that requirement, which he will not easily obtain.
[9] There is no point in me making an order which would be redundant to the existing order of Justice Andre, and which will likely only hold things up. In the circumstances, it makes sense to allow Ms. Taylor to become the applicant.
[10] I order that paragraph 4 of Justice Andre’s order is set aside. I further order that Ms. Taylor shall become the applicant in this matter. She shall file her application by July 21, 2021 using the same court file number.
[11] I do not need to re-iterate the remainder of Justice Andre’s order, which still stands.
[12] I also order that Mr. Haaksma shall file his answer by August 23, 2021, failing which Ms. Taylor may proceed with an uncontested trial.
Non-disparagement
[13] Ms. Taylor also seeks an order compelling Mr. Haaksma to comply with paragraph 6 of the minutes of settlement which were turned into an order of Justice Kurz dated May 5, 2020. Paragraph 6 says in part: “Neither parent shall denigrate the other parent to the children or speak to the children about adult subject matter in the presence of the children.”
[14] The children are age 6, 11 and 13.
[15] The evidence in the motion record indicates that Mr. Haaksma has denigrated the mother to the children. The evidence is compelling. For instance, Ms. Taylor has described verbatim content of horrible text messages that she says Mr. Haaksma sent their older daughter, age 13. Ms. Taylor does not indicate when this occurred. Mr. Haaksma’s affidavit denies much of the content of Ms. Taylor’s affidavit but does not deny that these text messages were sent. He does say that Ms. Taylor has provided “no current evidence of me denigrating and exposing our children to the adult conflict.”
[16] Mr. Haaksma states that Ms. Taylor disparages him to the children, and he provides examples in his affidavit.
[17] It is in the best interests of a child that each parent help foster the child’s relationship with the other parent; it is contrary to the best interests of a child for a parent to disparage or denigrate the other parent to or in front of the child. The conduct described in the affidavits is immature and selfish. I have issued an order asking for the involvement of the Children’s Lawyer. There is already a non-disparagement order, and there is little point in making a redundant order, but I will do so and expand on the order.
[18] I order that:
a. Neither party shall disparage or denigrate the other parent in front of any of the children or to any of the children.
b. Each party shall respect and foster the children’s right to a healthy relationship with the other parent.
c. Neither party shall involve any of the children in, or speak to any of the children about, the adult issues in this dispute.
Sale of Matrimonial Home
[19] The parties separated in January 2020. Since then Mr. Haaksma has lived in the matrimonial home in Oakville. Ms. Taylor lived with her parents for a period of time and currently lives in rented premises in Oakville.
[20] Because her release conditions prohibit Ms. Taylor from attending at the matrimonial home, Mr. Haaksma has enjoyed sole possession of it. However, there is no order for exclusive possession.
[21] The matrimonial home is said by Ms. Taylor to be worth over $3M. She describes the home as large and extravagant. Mr. Haaksma disagrees as to the property’s value, and points to the tax assessment which is $2.265M. The property is encumbered with a $1.5M mortgage.
[22] Ms. Taylor seeks an order for the partition and sale of the matrimonial home. Mr. Haaksma opposes on the basis that he would like to buy Ms. Taylor’s interest in the home. He also opposes on the basis that it is in the best interests of the children to continue to have a connection to the home.
[23] While parties to a divorce often agree to terms that allow one spouse to buy out the other’s interest in the matrimonial home, generally parties are entitled to require the sale of jointly owned property: Allen v. Allen, 2019 ONSC 6208 at para. 47; Goldman v. Kudeyla, 2011 ONSC 2718 at para. 17.
[24] Exposing a property to the market is the best and fairest way to determine its value and to achieve the best price for the property.
[25] One party should not be able to prevent the other party from accessing the capital tied up in the property. Here, Mr. Haaksma should not be able to unilaterally decide that Ms. Taylor must rent while her capital is tied up in the matrimonial home.
[26] “There is nothing in the Family Law Act to suggest that, absent consent, one spouse should have a special right to purchase the matrimonial home”: Martin v. Martin (1992), 8 O.R. (3d) 41, 1992 CanLII 7402 (C.A.). That is not to say that orders for the sale of a matrimonial home are made as a matter of course:
[A]n order directing the sale of a matrimonial home before trial should only be made in cases where, in all of the circumstances, such an order is appropriate. Orders for the sale of a matrimonial home made before the resolution of Family Law Act issues (particularly the determination of the equalization payment), should not be made as a matter of course.
[27] In this regard I find Justice McGee’s decision in Goldman v. Kudeyla, supra, instructive, at para. 18-20:
To make a pre-trial order for the sale of a matrimonial home the court must first determine whether the resisting party has established a prima facie case that he or she is entitled to a competing interest under the Family Law Act. If not, then the right to sale prevails. If so, then the motion for sale is denied unless the selling party can demonstrate that the sale would not prejudice the rights of the resisting party.
There have been a number of cases in which the Court has denied an interim motion for sale prior to trial such as Arlow v. Arlow (1990) 1991 CanLII 12940 (ON CA), 33 R.F.L. (3rd) 44 (OCA,) Walters v. Walters 1992 CanLII 8599 (ON SCDC), 1992 CarswellOnt 811 and more recently, Kereluk v. Kereluk 2004 CanLII 34595 Ontario S.C.J. In each case there were compelling circumstances in which one or both tests favoured the resisting party, such as the availability of trial within a short period, prejudice on the equalization payment, or the need to preserve the residence for a vulnerable spouse or child who might well retain the home in the cause.
Issues arising from relationship breakdown are by their very nature inextricably intertwined. I agree with Justice Wright’s reasoning in Walters supra, confirmed in Kereluk, supra that orders for the sale of the home should not be made as a matter of course. One must always be mindful of the whole of the proceeding and the need to move forward as fairly and expeditiously as possible. At the same time, determinations must have a starting point. The sale of the matrimonial home is often the most appropriate catalyst to effect the equal division of family assets and establish post separation parenting patterns.
Inevitability of a Sale
[28] Ms. Taylor’s Form 13.1 dated November 2020 says she is currently on long term disability leave since 2017 and that her 2019 income was $56,784. However, it shows her current monthly income as zero. She has deposed that she has had to borrow money from her parents. She describes herself as “financially destitute.” She says that Mr. Haaksma earns over $300,000 per year and only pays her child support of $1,800 per month.
[29] Mr. Haaksma responds that Ms. Taylor “has possession of all the liquid family assets.” He gave her an $83,000 insurance cheque for the loss of one of the family vehicles. However, he also says she “has been paid disability benefits but those have [been] denied approximately 18 mos ago.” He then says he lost his job on February 9 “due to Covid related issues.” He says that Ms. Taylor’s employment “provides her with more disposable income than I.” [sic – I believe he means Ms. Taylor’s employment when she was working provided her with more disposable income than he receives currently, or perhaps than he received from his employment when he was employed.]
[30] Mr. Haaksma says Ms. Taylor “has never contributed to the mortgage, supported the line of credit, paid a utility bill, a property tax bill, contributed to any home improvements, or any furnishings.” He has been paying the expenses associated with the matrimonial home. However, Ms. Taylor’s evidence that the property taxes are in arrears by $16,000 was not challenged.
[31] There is no evidence to suggest that the parties will be able to equalize the net family property and at the same time maintain the standard of living which included the matrimonial home. Ms. Taylor’s financial statement shows that her interest in the matrimonial home grossly exceeds all her other assets combined. Mr. Haaksma’s failure to provide financial disclosure, in contravention of Justice Andre’s order, does not help in understanding who will owe whom an equalization payment and does not assist his position. On the evidence before me, a sale of the home appears to be an inevitability for financial reasons.
[32] It is also inevitable because Ms. Taylor is entitled to force a sale in order to maximize her return.
Best Interests of the Children
Where the Children Spend Their Time
[33] The children are on a week-about parenting schedule.
[34] Mr. Haaksma said in his affidavit dated March 29, 2021 that, despite the agreement for week-about parenting time, since before Christmas he has had the kids 75-80% of the time. This is disputed by Ms. Taylor.
[35] Even if it were true that the children spend most of their time at the matrimonial home, this would not change my decision, but I will explain why I cannot put much weight on Mr. Haaksma’s evidence on this point.
[36] This motion was originally scheduled for March 24, 2021 but did not proceed. Mr. Haaksma’s attempt to file a response to the motion was not accepted because it was late. Justice Coats adjourned the motion but set a deadline of March 26, 2021 for Mr. Haaksma to file his responding sworn affidavit.
[37] Mr. Haaksma did not comply with Justice Coats’s deadline. His affidavit was not sworn until March 29, 2021.
[38] Mr. Haaksma did not serve his affidavit until March 30, 2021, the day before the March 31, 2021 hearing. This did not leave Ms. Taylor with a realistic opportunity to respond to his evidence.
[39] I allowed Mr. Haaksma to file his affidavit at the hearing, but given the unfairness inherent in Mr. Haaksma’s approach, and his failure to comply with the court ordered timeline, it would be inappropriate to give the disputed parts of his affidavit full weight.
[40] Further, I cannot assume that even if the children are spending more time with Mr. Haaksma, that this will continue.
[41] Mr. Haaksma argues that it is in the best interest of the children to stay in the matrimonial home. They are “settled and happy where they are.” They are “happy at their schools, have developed strong ties with their local friends, actively involved in sports, our community, and I am their primary care-giver.” The point about being the primary caregiver is disputed and, again, I do not accept Mr. Haaksma’s evidence on this point. I do accept that the children are settled and happy at their schools, close to their friends, and involved in their communities.
Other Housing Options
[42] There is no evidence that other suitable homes within the children’s school area and current community are unavailable. According to Mr. Haaksma’s affidavit, Ms. Taylor’s rental accommodations are “10 mins away in a lovely home in a comparable neighbourhood,” so Ms. Taylor was able to find something suitable.
[43] In Goldman v. Kudeyla, supra, the husband resisted the sale of the matrimonial home. One of his arguments was that it was in the best interests of the parties’ child that she remain in the home. The child in that case spent just under half of her time with the father in the matrimonial home. She was younger than the parties’ children in the case before me. Despite these differences, I find what Justice McGee said at para. 27 to be instructive:
I have no evidence that Isabel is bonded to this particular home in a manner that would cause her harm if the home were sold. Nothing distinguishes this home from others in the community. Housing can be one of many criteria in the assessment of parenting strengths. But provided that the housing is safe, comfortable and appropriate, it has little to no further consequence as a factor. The husband does not (and could not with any credibility) suggest that he would be unable to provide appropriate housing for Isabel, but for this residence.
[44] Further, as indicated, the evidence here suggests that the home will eventually be sold as part of the equalization process. Dismissing Ms. Taylor’s request will delay but not prevent the displacement associated with moving.
[45] I note that the children have already experienced a partial displacement in that when they stay with Ms. Taylor, they are not in the matrimonial home.
Malicious, Vexatious or Oppressive Conduct
[46] Mr. Haaksma describes Ms. Taylor’s sense of urgency to sell the home as “vindictive.” However, there is no evidence to support this. It is wrong to suggest that Ms. Taylor is insensitive to the best interests of her children because she wants the matrimonial home sold. It is reasonable that she would want to realize her rightful interest in the property and access her capital. It is reasonable that she would want to sell the home in the current market. Mr. Haaksma has not shown malicious, vexatious or oppressive conduct of the part of Ms. Taylor, which is the standard for the exercise of the court’s discretion under s. 2 of the Partition Act, R.S.O. 1990, c. P.4: Latcham v. Latcham, [2002] O.J. No. 2126, 2002 CanLII 44960 (C.A.) at para. 2.
[47] I have no doubt that Mr. Haaksma will see it differently, but he is holding Ms. Taylor’s capital hostage, to paraphrase Justice Finlayson in Silva v. Silva (1990), 1 O.R. (3d) 436, 1990 CanLII 6718 (C.A.) at para. 24.
Disposition re Sale of Matrimonial Home
[48] The matrimonial home shall be listed for sale on the following terms:
a. The parties shall attempt to agree on a listing agent. If the parties cannot agree on a listing agent by July 23, 2021, they shall each appoint an agent who is prepared to co-list the property with the other’s agent and to work cooperatively with the other’s agent.
b. Mr. Haaksma shall make the premises available, on 48 hours’ notice, for inspection by the selected agent or agents.
c. If the parties cannot agree on a listing price, the recommendation for the listing price of the agent or agents shall be followed. If there is more than one agent and the agents cannot cooperatively determine a recommended listing price, the listing price shall be the average of their recommendations.
d. A listing agreement or agreements with the agent or agents shall be executed by August 6, 2021.
e. The property shall be listed for sale by August 23, 2021.
f. Mr. Haaksma shall make the home available for showings from 9:00AM to 5:00PM for both days of the first weekend after the property is listed and, on 24 hours’ notice, for up to four showings during the work week (Monday to Friday) and three showings per weekend day thereafter. In the alternative, he shall vacate the premises to allow for the sale.
[49] Any of the foregoing terms or timelines may be altered or adjusted by agreement between parties.
[50] If any dispute arises as to the sale of the matrimonial home, the parties may contact me via email through my judicial assistant, Linda Thompson. In the event Ms. Thompson is on vacation or absent at the time, she will have an automatic reply active that will provide instructions on who to contact in her absence. The parties shall not submit argument to me on any issue without a specific invitation to do so by me. Rather, the parties are limited to contacting me to describe, in not more than 500 words: the issue that is in dispute; the form of hearing requested; if an oral hearing is requested, the party’s availability for a 9AM hearing. I will then set a procedure and timetable for resolving the issue, which may be done by a written or oral hearing as I shall direct.
[51] Neither party shall express to the children any disparagement of the other regarding this order or the listing or sale of the property. Neither party shall communicate to the children any form of blame attributable to the other party regarding the sale of the matrimonial home. Neither party shall involve the children, in any way, in adult matters regarding the sale of the property.
Costs
[52] If the parties cannot resolve the issue of the costs of this motion, Ms. Taylor shall serve and file costs submissions not later than July 23, 2021. Her submissions shall consist of not more than three pages plus copies of any offers, bills of costs, dockets or other supporting documentation.
[53] Mr. Haaksma shall serve and file his responding costs submissions by July 28, 2021. His submissions shall have the same limits: not more than three pages plus copies of any offers or other supporting documentation.
[54] No reply shall be permitted without leave.
[55] The costs submissions shall be filed through the portal with a copy sent to me via Ms. Thompson by email.
Final Note
[56] At the outset of the motion hearing I suggested to the parties that they should not have abandoned private mediation so easily. There is a high level of conflict. The parties’ conflict will potentially be harmful to the children and to the economic interests of the parties in the long term.
[57] On reflection, I do not think mediation is likely to be successful until Mr. Haaksma provides financial disclosure or while he remains self-represented. Mr. Haaksma should consider re-engaging counsel and the parties should carefully consider mediation. The parties must recognize how important it is to their children that they de-escalate their conflict and resolve of their differences. They must understand that, because of the children they share, they will have at least some involvement in each other’s lives for many years. If approached with a willingness to compromise, private mediation may be the best way forward.
“Justice R. Chown”
Released: July 7, 2021