Fernando v. Fernando , 2021 ONSC 5851

COURT FILE NO.: FS-21-22611

DATE: 20210901

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Anne Winifreeda Fernando

Applicant

– and –

Sampath Fernando

Respondent

Monika Goyal, Agent for the Applicant

Muhammad Zafar, for the Respondent

HEARD: August 10, 2021

PINTO J.

REASONS FOR DECISION

Background

1The respondent brings a motion for sale of the matrimonial home, among other relief sought, on the basis of financial hardship.

2The parties, of Sri Lankan origin, were married on August 28, 2011 and separated on March 27, 2018. They have three children aged 15, 11 and 6.

3Following separation, the parties continued to reside separate and apart in the matrimonial home. On March 30, 2021, officers from Peel Region attended at the home and a charge, or charges of assault, were laid against the applicant wife at the behest of the respondent husband in respect of an incident that allegedly took place 15 years earlier in 2006. The criminal charges against the applicant are pending and the applicant is barred from contact or communication with the respondent.

4By way of urgent motion and order of Leiper J. dated April 8, 2021, the applicant was permitted to return to, and granted temporary exclusive possession of the matrimonial home and continues to reside there with the three children. The respondent moved out as per the same order and rents a basement apartment.

5In her April 8 order, Leiper J. imputed income of $35,000 to the respondent who is a taxi driver and ordered the respondent to pay interim child support in the amount of $718 per month.

6The applicant brought a subsequent motion seeking to impute income of $75,000 to the respondent, however, in an endorsement dated July 27, 2021, Nishikawa J. declined the motion and confirmed the respondent's imputed income of $35,000.

7The respondent worked for many years as a taxi driver. He had a second taxi, leased to another driver, who was responsible for all the expenses of the second taxi. That driver used to pay the respondent $300 a month but, since March 2020, and the onset of the COVID-19 pandemic, that driver has not been able to pay the amount.

The Respondent's Position

8The basis of the respondent's motion based on financial hardship can be summarized as follows:

(a) He earns $1,800 from Canada Recovery Benefit (CRB), formerly CERB (Canada Emergency Response Benefit), but his expenses include $1,000 to rent an apartment, and $718 for child support. He also pays for all the expenses of the matrimonial home, for which he is solely on title, including the mortgage payments, utility, and repair expenses. He has been taking loans from his father, family, and friends due to his limited income.

(b) This is an ideal time for selling the matrimonial home as the current property market is favourable to getting the maximum price.

(c) He has returned all his taxi equipment to Co-op Cabs Taxi Company, as he cannot afford the amount he has to pay to the taxi company. He has not been working with Royal Taxi since April 2021.

(d) The bank has deferred the mortgage payments on the matrimonial home since April 2020. He does not know how long the bank will continue to allow the deferral. He is afraid that, if he defaults on the mortgage, the bank will seek foreclosure.

(e) The respondent acknowledges that he owns two properties in Sri Lanka but claims that he holds them in trust for his 85-year old father. One of the properties is the father's principal residence. The father is living off the profits generated from coconut trees on the second property.

(f) The respondent's balance on his credit line as of June 2021 is $48,589.99. The interest is increasing each day.

9I am not prepared to grant the respondent's motion for sale of the matrimonial home.

The Law

10The court should exercise caution in ordering the sale of a matrimonial home before trial and before the resolution of the property equalization issues: Martin v. Martin 1992 7402 (ON CA):

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 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.

11The principles applicable to the judicially ordered sale of a matrimonial home were summarized by Pazaratz J. in Dhaliwal v. Dhaliwal, 2020 ONSC 3971, at para. 16. Out of the many factors discussed by Pazaratz J., the following are relevant:

(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 housing. Delongte v. Delongte 2019 ONSC 6954 (SCJ); Kaing v. Shaw 2017 ONSC 3050 (SCJ). The 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 34595 (SCJ).

12In Hutchison-Perry v. Perry, 2019 ONSC 4381, Faieta J. held:

37Additional 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 6718 (ON CA), 1 O.R. (3d) 436 (C.A.), at p. 445; Martin v. Martin (1992), 1992 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)

Analysis

13The respondent's position regarding financial hardship is not sufficiently compelling to persuade the court that a forced sale of the matrimonial home, particularly at an interim stage, is appropriate.

14The respondent is a taxi driver. He states that he has returned all the taxi equipment but he does not state that he has sold his two taxi licenses. There was no evidence in the respondent's motion material about the sale or attempted sale of these licenses, although respondent's counsel suggested that they have significantly diminished in value due to Uber's incursion into the market, and due to the pandemic.

15The respondent is currently earning $1,800 a month through CRB (formerly CERB), but that can change very quickly if the respondent obtains new employment, or if the amount of this benefit changes. Also, two judges, Leiper J. and Nishikawa J., have imputed income of $35,000 to the respondent precisely due to uncertainty over the respondent's financial information. I acknowledge that the respondent provided evidence of his unsuccessful attempts to secure alternate employment. However, I am not confident based on the evidence presented that the respondent's unemployment is permanent or semi-permanent.

16The respondent's evidence about his property in Sri Lanka is very unclear. He claims he is holding it in trust for his father. But his father is not at arms-length from the respondent. Also, the respondent presented no evidence about what income is being generated from these properties. The respondent claims the father is living off the proceeds of sale of coconut trees on the property but also capable of loaning the respondent money. It is not clear why the sale of the matrimonial home, thereby displacing the applicant and three still young children, is required when an alternative may be to sell one of the properties in Sri Lanka.

17Finally, I find that the applicant and the children, who currently reside in the matrimonial home, are in a vulnerable position. In fact, the applicant has exclusive possession of the home by order of Leiper J. The eldest child D is going into Grade 11 in September 2021. She is enrolled in a special program called STEAM (Science, Technology, Engineering, Arts, and Math) which appears to be unavailable if she resides out of the school catchment area. The children, aged 15, 11 and 6, are still young and have developed relationships in their current neighbourhood and school. The applicant is employed full-time at a school earning $14.50 per hour equivalent to an annual income of $33,166. It is unlikely that the mother and children will be able to secure alternate accommodation appropriate for their needs in a reasonable time if the matrimonial home is put up for sale.

Costs

18The applicant has been successful in resisting the respondent's motion seeking an order for the sale of the matrimonial home. She seeks $3,500 plus HST, or $3,955 rounded to $3,950 in costs. I consider this amount reasonable pursuant to the factors identified in Rule 24(12) of the Family Law Rules. I note that the respondent's request for costs, should he have been successful, was $3,000, which is comparable.

Disposition

19An order shall go dismissing the respondent's motion and fixing costs in the amount of $3,950 payable by the respondent to the applicant within 30 days of the date of the release of this endorsement.

20I note that the within motion was scheduled to deal with the sale of the matrimonial home and equalization, and that in her factum, the applicant sought an order to be added on to the title of the matrimonial home. I do not recall submissions on the latter point being made at the hearing of the motion which only focused on the sale of the matrimonial home. If the parties wish to speak to this point, they may contact me through the family law judicial assistant Patricia Generali who can be contacted via email at Patrizia.Generali@ontario.ca.

Pinto J.