RULING ON MOTIONS

CARROCCIA J.

[1] There are two motions before the court. The applicant’s motion dated April 9, 2021 seeks the following relief:

An order pursuant to ss. 2 and 3 of the Partition Act, R.S.O. 1990, c. P.4 and Rules 66.01 and 54 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that the matrimonial home located at 2970 Byng Road, Windsor, Ontario, be sold;
An order that the proceeds from the sale be held in trust equally divided between each party’s real estate lawyer, except for the sum of $80,000 to be paid to the applicant out of her share of the proceeds of the sale;
An order that either party may initiate a reference if any assistance is required with regard to the listing or sale of the matrimonial home;
An order that the respondent provide full and complete financial disclosure using a Form 13.1 Financial Statement Form;
An order striking certain paragraphs form the respondent’s affidavit, dated April 30, 2021;
An order dismissing the respondent’s cross-motion dated April 30, 2021; and
Costs.

[2] The respondent’s motion, dated April 30, 2021, seeks the following relief:

An order granting the respondent temporary exclusive possession of the residence located at 2970 Byng Road and its contents;
An order temporarily staying the notice of motion of the applicant requesting the immediate sale of the residence; and
Costs

Background

[3] The court has considered the following evidence in making a determination in this matter: the financial statement of the applicant, dated July 13, 2020; the affidavits of the applicant, dated April 9, 2021 and May 7, 2021; the factum filed by the applicant; the affidavit of the respondent, dated April 30, 2021; and the financial statement of the respondent dated July 10, 2020.

[4] The respondent denies that the parties have ever been legally married. Following a trial of that issue on March 3, 2020, Munroe J. found that “the marriage between Ms. Lalonde and Mr. Agha on August 7, 1998 in Memphis, Tennessee is deemed to be a valid marriage pursuant to s. 31 of the Marriage Act and, therefore, the parties are ‘spouses’ under FLA s. 1(1)”.

[5] That decision has been appealed to the Ontario Court of Appeal.

[6] The parties have three children together: Ibrahim Agha, born November 2, 1998, Jenine Agha, born October 6, 2003, and Zakariah Agha, born January 31, 2009. According to the applicant, the oldest child resides with the respondent and the two youngest children reside with the applicant. Their daughter, Jenine, resided with the respondent following separation until April 2020, when she moved in with her mother, the applicant.

[7] The parties separated on February 24, 2016. Since that time, the respondent has resided in the matrimonial home located at 2970 Byng Road. There is no mortgage on the property. The applicant claims that the respondent’s new partner and her daughter reside at the home with the respondent and their oldest child.

[8] In her affidavit dated April 9, 2021, the applicant attaches a letter dated March 17, 2021 as Exhibit “D” from the solicitors for the Bank of Montreal threatening legal action if she does not repay a debt owed of $23,850.47. Furthermore, the Bank of Nova Scotia has retained counsel to recover the sum of $16, 937.72 owed by the applicant.

Position of the Parties

Applicant

[9] The applicant is seeking an order for the immediate sale of the matrimonial home located at 2970 Byng Road, Windsor, Ontario. Her position is that she has borne all the negative financial consequences of the marriage breakdown and that she is struggling financially, whereas the respondent has significant assets which he refuses to disclose in the form of a Form 13.1 Financial Statement.

[10] The applicant claims that she requires the funds from the sale of the home in order to pay her debts and for her own support.

[11] Furthermore, her position is that the respondent only provides financial disclosure when he is ordered to do so and accordingly, she is seeking an order that he be compelled to provide a Form 13.1 Financial Statement.

[12] Finally, the applicant seeks to strike certain paragraphs of the affidavit of the respondent dated April 30, 2021, because they are inflammatory, irrelevant, conclusionary, and prejudicial to the applicant.

Respondent

[13] The respondent takes the position that the applicant has brought numerous interim motions in this matter which have had the effect of delaying and significantly adding to the expense of these proceedings.

[14] The respondent maintains that he has been forthcoming with financial disclosure as he is required to do. He is currently supported by Employment Insurance Benefits because he is unable to work in his usual field, as an engineer due to severe anxiety and stress. He is currently under the care of a psychiatrist.

[15] The respondent also disputes the circumstances outlined by the applicant as to the residency of the children. It is his position that the child, Jenine, has been residing with him during the week, that is from Monday to Friday, and with the applicant on weekends for the four to five weeks preceding his affidavit sworn on April 30, 2021.

[16] He also swears that the youngest child, Zakariah, had been alternating weeks between his home and the applicant’s home.

[17] The respondent indicates that once his daughter Jenine commences her studies at the University of Windsor in September 2021, it is her intention to reside with the respondent on a full time basis rather than with the applicant in Tilbury, Ontario. Jenine is also working part-time at the Superstore in Windsor, Ontario. Living with the respondent would be more convenient to her commute to work and school. The oldest child, Ibrahim, resides with the respondent and attends Wayne State University in Detroit, Michigan.

[18] The respondent claims that he has no other available and affordable alternate accommodation for himself and the children if the residence is sold. He maintains that it would have a disruptive and perhaps devastating impact upon the education of the children if he were required to move.

[19] The respondent therefore requests an order to temporarily delay the sale of the residence and grant him exclusive possession of the home at 2970 Byng Road, Windsor, Ontario, as it would be in the best interests of the children.

Legal Principles

1. Order for Partition and Sale

[20] Sections 2 and 3 of the Partition Act govern the partition and sale of property held in a joint tenancy or as tenants in common. A joint tenant has a prima facie right to an order for partition and sale unless the joint tenant opposing the sale can establish that the other party is seeking to do so for malicious, vexatious or oppressive reasons.

[21] In Marchese v. Marchese, 2019 ONCA 116, the appellant wife argued that the trial judge erred in ordering the sale of the parties’ matrimonial home. The Court of Appeal disagreed, stating at para. 5:

As the trial judge correctly stated, the respondent had a prima facie right to an order for the partition and sale of the matrimonial home. As a result, the trial judge was required to order the sale unless the appellant demonstrated that such an order should not be made and showed there was malicious, vexatious or oppressive conduct on the part of the respondent in relation to the sale itself. The trial judge found that the appellant did not allege there was any such conduct nor did she put forward any other legal basis to preclude the sale of the matrimonial home.

[22] The respondent argues that that decision relates to an order made following a trial. He relies on the decision in Martin v. Martin, 1992 CanLII 7402 (ON CA), [1992] O.J. No. 656, where Osborne J.A. speaking for the court states, at para. 26:

Although there is clear jurisdiction under the Partition Act to order the sale of the parties’ matrimonial home I do not wish to be taken to have endorsed the wholesale issuance of these orders. In my view, an 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. See Binkley v. Binkley (1988), 1988 CanLII 8717 (ON CA), 14 R.F.L. (3d) 336 (Ont. C.A.). In addition, spousal rights of possession (s. 19) and any order for interim exclusive possession should be taken into account.

[23] The respondent now seeks an order of exclusive possession of the home to challenge the motion brought by the applicant seeking the partition and sale of the home.

[24] Martin v. Martin was considered in Hutchison-Perry v. Perry, 2019 ONSC 4381. In that decision, at para. 37, the court says:

Additional considerations apply when a spouse seeks an order for the sale of a matrimonial home prior to the final determination of the spouses’ claims under the Family Law Act, R.S.O. 1990. c. F.3, (“FLA”). In such case, an application under the Partition Act should not proceed when the opposing spouse shows that the sale would prejudice the rights of a spouse under the FLA or a court order (see Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (C.A.), at p. 445; Martin v. Martin (1992), 1992 CanLII 7402 (ON CA), 8 O.R. (3d) 41 (C.A.), at para. 26 or, at the very least, that the opposing spouse’s arguable claims under the FLA would be prejudiced (see Binkley v. Binkley, [1988] O.J. No. 414 (C.A.), at para. 3; Gibson v. Duncan, 2013 ONSC 5377, at paras. 20-23).

[25] A helpful summary of the relevant legal principles was reviwed by Pazaratz J. in Dhaliwal v. Dhaliwal, 2020 ONSC 3971, at para. 16. Below are some of those principles which are applicable in the circumstances of this case:

k. More to the point, where it is evident at the temporary motion stage that monthly carrying costs are currently unsustainable, it is inappropriate to indefinitely perpetuate financial hardship for the entire family. Quite commonly, house expenses which were barely affordable when the family unit was intact immediately become unaffordable once the same income has to fund two separate households. Sometimes harsh new realities need to be faced sooner as opposed to later – in order to avoid even more painful consequences such as power of sale proceedings or even bankruptcy.

l. The court must consider the impact of a proposed sale on children or a vulnerable spouse – including the emotional impact, and the fundamental need to ensure that they have appropriate availability and affordability of alternate housing must be considered. As part of the analysis, support obligations may need to be co-ordinated – even on a temporary basis – to ensure that any party displaced by a sale will have the resources to arrange reasonable replacement accommodation.

m. Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course. Fernandes v Darrigo, 2018 ONSC 1039 (SCJ). The court must be mindful of the whole of the proceeding, and the need to achieve a final resolution for the family as fairly and expeditiously as possible. Kereluk v. Kereluk, 2004 CanLII 34595 (SCJ).

n. Timing can be a relevant consideration in dealing with a motion for sale at a temporary stage. The availability of a trial within a short period might reduce the pressure for an immediate sale. Goldman v. Kudeyla, 2011 ONSC 2718 (SCJ).

o. On the other hand, a request for sale during summer months may entail some timeliness if seasonal market opportunities are favourable; or to reduce the likelihood of a child having to change residence (and possibly catchment area) while a school year is in session.

p. The stage of a child’s academic progress might also be relevant. Sale might be delayed if it would allow a child to complete a certain grade level before an inevitable switch to another school. On the other hand, immediate sale might be more appropriate if the child happens to be transitioning to a new school in any event.

q. But the mere existence of children in a household is not in itself a sufficient basis to oppose a sale. A generic statement that children enjoy living in their current house or that they will be unhappy if they have to move, is not sufficient. The party opposing a sale must establish a likely negative impact more serious than the inevitable adjustments and disruptions which all families face when parents decide to separate.

r. A pending equalization claim may also be relevant. The court cannot compel one joint tenant to sell to the other. Martin v. Martin, 1992 CanLII 7402 (ON CA). Nor can it give either joint tenant a right of first refusal. Dibattista v. Menecola, 1990 CanLII 6888 (ON CA). But a recipient of an equalization payment may propose to set that entitlement off against their former spouse’s share of the equity in the home. If a sufficiently particularized proposal seems viable – and especially if it would benefit a child – sale should be delayed to allow proper consideration of that option. Chaudry v. Chaudry, 2012 ONSC 2149 (SCJ).

s. The court must consider and attempt to guard against potential prejudice. Are there realistic issues or claims yet to be determined on a final basis, which would be prejudiced or precluded if a property is ordered to be sold at the temporary stage?

2. Order for Financial Disclosure

[26] Financial disclosure is required in family law litigation in order to fairly and justly resolve the issues between the parties. The failure to make financial disclosure is often a cause of unnecessary delays in the resolution of family disputes.

[27] Rule 13 of the Family Law Rules, O. Reg. 4398/07, as well as the other legislation dealing with the resolution of family disputes, require the parties to provide complete and truthful financial disclosure.

[28] In Sickinger v. Sickinger, 2018 ONCA 526, the Ontario Court of Appeal says the following at para. 36:

It is worth repeating that rules for disclosure and the sanctions for non-compliance are “the centrepiece of the Family Law Rules”. As this court described it in Roberts v. Roberts, 2015 ONCA 450, at paras. 11-12:

The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.

Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent, and the final adjudication is stalled.

[29] Furthermore, rule 13(1.2) states the following:

FORM 13.1 FOR PROPERTY CLAIM WITH OR WITHOUT SUPPORT CLAIM

13(1.2) If the application, answer or motion contains a property claim or a claim for exclusive possession of the matrimonial home and its contents, the financial statement used by the parties under these rules shall be in Form 13.1, whether a claim for support is also included or not. [Emphasis added.]

[30] Although the respondent is seeking an order for exclusive possession of the home, he has not filed a Form 13.1 Financial Statement and resists the order sought by the applicant that he file one.

3. Motion to strike parts of the Affidavit

[31] Rule 1(8.2) of the Family Law Rules provides that:

The court may strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process.

[32] Furthermore, r. 14(18) provides that an affidavit to be used on a motion shall, as much as possible, contain only information within the personal knowledge of the affiant.

4. Order for Exclusive Possession

[33] Section 24 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) provides in part:

24(1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,

(a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents;

(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;

(3) In determining whether to make an order for exclusive possession, the court shall consider,

(a) the best interests of the children affected;

(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children.

[34] Matrimonial home is defined in the FLA, at para. 18(1), as:

Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.

[35] Spouses is defined in s. 1(1) as persons who are married to each other.

Analysis

Financial Disclosure

[36] I will deal first with the issue of financial disclosure. The respondent has made a claim for exclusive possession of the matrimonial home in his cross-motion and yet has not filed a Form 13.1 Financial Statement as is clearly required by the rules as outlined above.

[37] That form is more detailed than the Form 13 Financial Statement in that it requires the party to provide details of securities and pensions, life and disability insurance, as well as his business interests and additional sources of income including dividends received and capital gains. The applicant has completed a Form 13.1 Financial Statement.

[38] Following the decision of Munroe J., and unless the Ontario Court of Appeal rules otherwise after hearing the appeal of that decision, the parties in this matter are spouses within the definition of the FLA.

[39] The applicant maintains that the respondent has not been forthcoming with respect to his financial situation including the fact that his 2019 Income Tax Return discloses that he sold shares held for $42,887, which fact was not disclosed in his financial statement dated July 10, 2020.

[40] As is stated in Sickinger, the most basic obligation in family law is financial disclosure. This obligation is immediate and ongoing. It appears that the respondent has not complied with this obligation to date. Accordingly, there will be an order that he complete, serve and file a Form 13.1 Financial Statement within 45 days of the date of this decision.

Motion to Strike Paragraphs in the Respondent’s Affidavit

[41] The applicant is seeking to strike certain paragraphs of the respondent’s affidavit dated April 30, 2021 because they are inflammatory, irrelevant, do not contains facts, and are prejudicial. The motion to strike refers to paragraph 2 (except the first sentence), and paragraphs 3 and 5. Those paragraphs contain, in my view, statements by the respondent as to his interpretation of the motivation of the applicant including that the motions brought by the applicant contain “piecemeal claims for interim relief”, that the applicant has “attempted to stereotype [the respondent] based upon [his] culture and religion” and that it is his belief that it was Justice Bondy’s intention to “take hold of this proceeding and limit and control continuing interim Motions”.

[42] Affidavits filed in support of motions are usually untested by cross-examination. Often the affidavits of the parties contain conflicting statements even as it relates to the most basic facts. In this case the parties disagree even as to where the child Jenine lives.

[43] A judge will do his or her best to wade through often voluminous material that is filed in support of temporary motions to distill the facts that are material and relevant to the issues to be determined. In so doing, he or she will disregard what is not material and relevant to that determination. While it is unfortunate, it is not unusual to find disparaging comments or contested statements in an affidavit.

[44] I do not find the impugned passages to contain material which is prejudicial or inflammatory and accordingly, I will not strike those paragraphs in the affidavit.

Order for Sale of the Home/Exclusive Possession

[45] The respondent has been living in the matrimonial home since the parties separated on February 24, 2016. In his answer filed, he did not make a claim for exclusive possession of the matrimonial home. He does so now in his cross-motion filed in response to the applicant’s motion for the immediate sale of the home. He lives essentially rent free since there is no mortgage owing on the property.

[46] On the other hand, the applicant is experiencing financial hardship. It is clear that she has significant debts. She is currently unable to capitalize on the equity in the home. As a joint owner, she has the prima facie right to request the sale of the property pursuant to the Partition Act, the question to be answered is whether such an order should be made in light of the cross-motion brought by the respondent for exclusive possession.

[47] At one point in time, as is evidenced by the material attached to one of the applicant’s affidavits, the parties had discussed the sale of the home and the respondent’s former counsel had obtained an appraisal dated March 2019 that valued the home at $290,000. In the current real estate market, it is likely that the home in now worth significantly more.

[48] The respondent does not allege that the motion brought by the applicant arises out of malice, is vexatious, or reflects oppressive conduct on the part of the applicant. He maintains that it is in the best interests of the children that the applicant’s motion be temporarily stayed and that he be granted temporary exclusive possession of the matrimonial home.

[49] The respondent seeks to adjourn the motion until after the case conference is conducted (which has been conducted since this matter was argued), and the appeal is determined by the Ontario Court of Appeal.

[50] The respondent concedes that he may or may not be able to find alternative accommodations if the house is sold and he receives his share of the proceeds. He further conceded that should the court make an order for the sale of the matrimonial home, it would not negatively impact any issue of equalization of net family property. The respondent has not established that the sale of the home at this time would result in any prejudice to him.

[51] The oldest child, Ibrahim, is currently 22 years old, a university student and lives with the respondent. The parties dispute, in their affidavits where Jenine lives. The youngest child lives with the applicant, but apparently spends a good deal of time with the respondent father. Following the order of Bondy J., on March 5, 2021, on a temporary basis, no child support or spousal support is payable by either party and any enforcement proceedings are stayed.

[52] It is somewhat unusual that the respondent takes the position that the parties are not married and is appealing the decision of Munroe J., finding that they are, to the Ontario Court of Appeal and yet uses that decision to his advantage in advancing a claim for exclusive possession to the matrimonial home pursuant to s. 24 of the FLA which is only available to him if the parties are spouses.

[53] The respondent has had the advantage of living in a mortgage free home for almost six years. While he claims that he may not be able to find suitable alternative accommodations, he offers no evidence to support that statement.

[54] On the other hand, the applicant has provided proof that she is significantly in debt and needs to access her share of the proceeds of the sale to avoid enforcement action against her to collect those debts.

[55] It is difficult, from the material before me, to gauge what impact, if any, an order for the sale of the home would have on the children. I accept that they may like their home and not want to move, however, in my view that is not sufficient to decline to make the order. Even if I accept that both Ibrahim and Jenine reside with their father, they are both university students and not young children who require the comfort and stability of maintaining a routine as it relates to school and home. Again, there is no evidence before me to suggest how the children would be adversely impacted by an order for the sale of the home.

[56] Accordingly, on the totality of the evidence before me, I find that the respondent has not established any reason why the motion brought by the applicant should be stayed as he urges me to do. The sale of the home seems to be inevitable and I will grant the applicant’s motion for the sale of the home which will free up significant equity for both parties and will alleviate some of the applicant’s financial hardship.

Conclusion

[57] The respondent’s cross-motion is dismissed.

[58] There will be an order that:

The matrimonial home located at 2970 Byng Road, Windsor, Ontario be listed for sale.
At the request of the respondent, the proceeds of the sale will be split equally between the parties.
Should either party require assistance from the court with regard to the listing or sale of the matrimonial home, either party may initiate a reference.
The applicant will be permitted to attend at the matrimonial home prior to the sale of the home for a minimum period of two hours to prepare a list of items requested. The time shall be a mutually agreed upon time arranged between the parties.
The respondent shall provide financial disclosure using a Form 13.1 Financial Statement to be served and filed no later than 45 days from the date of this order.

Costs

[59] Both parties were seeking an order for costs, but costs were not addressed. Accordingly, if the parties cannot agree on the costs of these motions, they may provide the court with written submissions not to exceed five (5) pages in length, exclusive of a bill of costs, within 30 days of the date of this decision.

“original signed and released by Carroccia J.”

Maria V. Carroccia

Justice

Released: July 27, 2021

Lalonde v. Agha, 2021 ONSC 5223

Case Summary

RULING ON MOTIONS

CARROCCIA J.

Background

Position of the Parties

Applicant

Respondent

Legal Principles

1. Order for Partition and Sale

2. Order for Financial Disclosure

3. Motion to strike parts of the Affidavit

4. Order for Exclusive Possession

Analysis

Financial Disclosure

Motion to Strike Paragraphs in the Respondent’s Affidavit

Order for Sale of the Home/Exclusive Possession

Conclusion

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 3

Legislation 3