COURT FILE NO.: FC-21-658

DATE: 2021/11/05

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Saddo Souleiman, Applicant

AND

Cabdillahi Yuusuf, Respondent

BEFORE: Mackinnon J.

COUNSEL: Michele Blais, for the Applicant

Michael Rappaport, for the Respondent

HEARD: October 7, 2021

ENDORSEMENT

Introduction

Introduction

1Permission was given to the applicant to bring this motion on an urgent basis for exclusive possession of a jointly held home, plus parenting and related relief. By way of response, the respondent brought a cross motion seeking an order to sell the house, for equal parenting time on a 2/2/3 day basis and shared decision making.

2The parties are unmarried spouses who cohabited from May 2016 to December 2020. They have two children who are now four and two years of age. Both parties are employed and have been working from home during the pandemic. The jointly owned house was acquired in March 2020. Since December 2020 the parties have lived separate and apart in it. The maternal grandmother has lived with the family since February 2019. She provides the weekday childcare for the children, noting that in September 2021 the older of the two started full time junior kindergarten.

3The applicant has been ordered to remove Exhibit E to her affidavit dated September 21, 2021 from the continuing record. It included proposals to settle a key issue in the case.

Authority to award exclusive possession of a family home

Authority to award exclusive possession of a family home

4Section 24 of the Family Law Act, R.S.O. 1990, c.F.3, as am. enables the court to award exclusive possession of a matrimonial home but is only applicable to married spouses. For ease of reference section 24(3) and (4) provide:

Order for exclusive possession: criteria

(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. R.S.O. 1990, c. F.3, s. 24 (3); 2014, c. 7, Sched. 9, s. 4.

Best interests of child

(4) In determining the best interests of a child, the court shall consider,

(a) the possible disruptive effects on the child of a move to other accommodation; and

(b) the child’s views and preferences, if they can reasonably be ascertained. R.S.O. 1990, c. F.3, s. 24 (4).

5There is no statutory authority to award exclusive possession of real property to an unmarried non-owner or joint owner.

6The applicant submits that the court may in some circumstances award a common law spouse interim exclusive possession of a family home, relying on three decisions: Joyce v. O’Neill, 2008 ONCA 894, 2008 CarswellOnt 7956; Morrison v. Barbosa, 2017 CarswellOnt 12197 and Anness v. Kovacs, 2012 ONSC 7298. I concluded that these decisions are not applicable to the facts here, and that my jurisdiction does not enable me to make the order sought. Had section 24 of the FLA applied, I would have granted exclusive possession to the applicant.

7In each of Joyce, Morrison and Anness the registered owner had already vacated the family home in favour of the non-owner. In Joyce and Morrison, the non-owner was advancing a constructive trust claim that if successful at trial could result in a declaration of ownership, from which rights of possession would flow. The decisions to leave the non-owner in occupation of the family home were made on the balance of convenience and due to the desirability, that meritorious claims were adjudicated at trial before a sale or eviction was ordered.

8On similar facts the court in Lewis v. Oriji, 2009 CarswellOnt297 (S.C.J.) dismissed a registered owner’s request to evict the non-registered owner on the basis of trespass. The non-registered owner was asserting a constructive trust claim that if successful at trial could result in the declaration of an ownership interest, and as an owner, the respondent could not be found to have been trespassing.

9In the third case provided by the applicant, Anness, there was no claim for constructive trust. Possession was not awarded to the non-owner, however issuance of the writ of possession in favour of the owner was delayed for two months to provide the occupying parent time to relocate with the parties’ child.

10Gonzales v. Trobarovic, [2014] O.J. No. 4384 illustrates the importance of the merits of a claim for a declaration that the registered owner is holding legal title as a trustee in part for the benefit of the claimant:

45 I find, based on the material before me, that Mr. Trobadovic's claim for a constructive trust interest in the Milton Avenue home does not have sufficient merit to prevent Ms. Gonzalez being restored to her possession of the home. Ms. Gonzalez will therefore be granted a writ of possession, effective May 31, 2014. Mr. Trobradovic shall be required to vacate the property within that period and Ms. Gonzalez shall have exclusive possession of the property effective June 1, 2014, subject to her obtaining the necessary amendment of her bail condition.

11I view the cases relied on by the applicant as examples of courts properly exercising inherent jurisdiction to decline to order a common law spouse out of a family home pending trial of her meritorious claims that if successful could result in a declaration of ownership, from which rights of possession would flow. These decisions essentially delay enforcement of the owner’s legal right to possession, rather than standing for the authority that the court may create a substantive right to exclusive possession by use of inherent or equitable jurisdiction.

12Endean v. British Columbia, 2016 SCC 42, [2016] 2 S.C.R.162 addresses the inherent jurisdiction of superior courts in the context of pan-national class actions and answers the question whether a superior court judge appointed to one province may preside in another provincial jurisdiction. Justice Cromwell writes at paras 22 to 24:

22The answer to this question is yes.

23The inherent powers of superior courts are central to the role of those courts, which form the backbone of our judicial system. Inherent jurisdiction derives from the very nature of the court as a superior court of law and may be defined as a “reserve or fund of powers” or a “residual source of powers”, which a superior court “may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them”: I. H. Jacob, “The Inherent Jurisdiction of the Court” (1970), 23 Curr. Legal Probs. 23, at p. 51, cited with approval in, e.g., Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 20; R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78, at para. 24; and MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725, at paras. 29-31.

24The courts have recognized that, given the broad and loosely defined nature of these powers, they should be “exercised sparingly and with caution”: Caron, at para. 30. It follows that courts should first determine the scope of express grants of statutory powers before dipping into this important but murky pool of residual authority that forms their inherent jurisdiction: see, e.g., Century Services Inc. v. Canada (Attorney General), 2010 SCC 60, [2010] 3 S.C.R. 379, at paras. 63-68. As The Honourable Georgina Jackson and Janis Sarra write, “[i]t is only where broad statutory authority is unavailable that inherent jurisdiction needs to be considered as a possible judicial tool to utilize in the circumstances”: “Selecting the Judicial Tool to get the Job Done: An Examination of Statutory Interpretation, Discretionary Power and Inherent Jurisdiction in Insolvency Matters”, in J. P. Sarra, ed., Annual Review of Insolvency Law 2007 (2008), 41, at p. 73.

13Inherent jurisdiction enables a superior court to control its own process, and as seen in the cases discussed above, can include declining to enforce a sole owner’s right to sell a family home before trial, or declining to evict the non-owner in sole occupation of the family home before trial, by reason of meritorious claims by the non-owner that if successful at trial could vest ownership rights in the non-owner too.

14Whereas the successful moving parties above had advanced claims that if successful at trial would result in their being declared legal owners with the same attendant right of possession as the registered owner, the applicant here does not advance a claim that if successful at trial could deprive the respondent of his right to any ownership and therefore to any right to possession. The applicant’s claim, pleaded as unjust enrichment, but perhaps sounding in resulting trust, essentially asks for the ownership interests to be determined not on legal title, rather by comparative financial contributions to the acquisition and maintenance of the home. If successful her beneficial ownership would exceed that of the respondent, but he would still have an ownership interest and still have a right to possession based on ownership.

15Miller v. Miller, [1996] O.J. No. 863 (C.A.) reminds us at paras 10 and 11 that joint owners have an equal right to possession. In our case the parties are unmarried joint owners with no common law or statutory remedy by which either may seek exclusive possession from or against the other. There is no precedent for ousting an unmarried joint owner from a family home with the possible exception of using the powers of the court set out in section 34 of the FLA in a dependent’s application for support. That claim was not made here.

16The applicant also asks the court to fix the value of the family home and to allow her to buy the respondent’s interest for an amount determined by the trial judge. The law is against this claim. A joint tenant has the right to receive fair market value for his or her interest in the property, the true test of which is sale on the open market. If the parties cannot agree to a transfer at an agreed price, the joint property should be listed for sale: See Batler v. Batler (1989), 1988 CanLII 4726 (ON SC), 67 O.R. (2d) 355 (H.C.J.) and Buttar v. Buttar, 2013 ONCA 517, [2013] O.J. No. 3725.

17Reference was also made to section 96 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as am, which states as follows:

Rules of law and equity

96 (1) Courts shall administer concurrently all rules of equity and the common law. R.S.O. 1990, c. C.43, s. 96 (1); 1993, c. 27, Sched.

Rules of equity to prevail

(2) Where a rule of equity conflicts with a rule of the common law, the rule of equity prevails. R.S.O. 1990, c. C.43, s. 96 (2); 1993, c. 27, Sched.

Jurisdiction for equitable relief

(3) Only the Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims Court, may grant equitable relief, unless otherwise provided. 1994, c. 12, s. 38; 1996, c. 25, s. 9 (17).

18Section 96 gives the Superior Court concurrent jurisdiction in law and equity. It thus gives the court the jurisdiction and powers of England’s Court of Chancery, and the authority to grant equitable remedies. A maxim used to summarize one equitable principle is that where there is a right, equity will provide a remedy. In this case there is no legal right to sole occupation for which equity can provide a remedy.

19I was not provided with and did not find any precedent for the use of inherent or equitable jurisdiction to prevent an unmarried spouse from asserting a substantive right to continue in occupation of a jointly owned residence. In Gillespie v. Manitoba (Attorney General),2000 CanLII 26952 (MB CA) at paras 101 and 102 the dissenting Justices commented, correctly in my view:

101In W. v. W., [1997] E.W.J. No. 1739 (QL) (Eng. C.A.), the court cautioned that there is a distinction between a procedural power which is necessary to control courts’ process and a substantive power affecting the legal right of the parties. As was noted (at para. 20):

There is powerful authority rejecting the contention that the inherent jurisdiction of the court confers a general residual discretion to make any order necessary to ensure that justice be done between the parties.

102Not surprisingly then, courts must be extremely cautious when asked to extend the scope of inherent jurisdiction to novel circumstances: Montreal Trust.

20Similarly, in Re Stelco, [2005] 75 O.R.( 2d) 5 the Court of Appeal held at para 34:

34Inherent jurisdiction is a power derived "from the very nature of the court as a superior court of law", permitting the court "to maintain its authority and to prevent its process being obstructed and abused". It embodies the authority of the judiciary to control its own process and the lawyers and other officials connected with the court and its process, in order "to uphold, to protect and to fulfill the judicial function of administering justice according to law in a regular, orderly and effective manner". See I.H. Jacob, "The Inherent Jurisdiction of the Court" (1970) 23 Current Legal Problems 27-28. …(emphasis added).

21I have added the emphasis because it seems to me that to grant the order sought by the applicant would be to usurp legislative authority in a substantive area in which the legislature clearly has the power to act and has not done so.

22For these reasons I conclude that the claims made by the applicant that cannot be adjudicated until trial are not of the nature or likely outcome that would justify a use of inherent or equitable jurisdiction to order the respondent to move out of the jointly owned family home. Even in the compelling facts of Kiang v Shaw, 2017 ONSC 3050, referred to below, the court was not asked to and did not order exclusive possession to the wife and children, rather only did not disturb their de facto occupation given that the father/sole owner having already left the home.

23In 2007, Sadvari and Velez called for legislative reform in their paper, “Can a Common Law Spouse Obtain Exclusive Possession by Injunction or Other Means?” presented at the Ontario Bar Association Program, Constructive Trusts and Resulting Trusts: Bringing Order to Chaos. They recommended legislation to enable courts to award interim occupation rights to common law spouses akin to what the law provides to married spouses in section 24 of the FLA. At page 14 they stated “…children ought not to suffer hardship because their parents chose not to marry. It is not their fault they were born inside or outside marriage.” I agree.

24My reasons for dismissing the motion to sell the house before trial and determining that the applicant should be the primary residential parent will explain why I would have granted sole occupation rights to the applicant had I the jurisdiction to do so. Because of an absence of statutory authority these parties are left in the anomalous situation where both the motion for exclusive possession and the motion for sale are dismissed, and unless one parent decides to move out of the family home in the interests of the children, they are likely to continue to be exposed to parental conflict and tension until their parents’ case is finalized. Unlike the applicant, the respondent has alternate accommodation readily available to him with his sister and her family. He deposes that his plan is to live there with the children after the house is sold, but to date he has not moved there voluntarily. As will be seen below, I have provided for parenting and child support orders in two scenarios: if he remains in the family home, or if he vacates it voluntarily.

Should the jointly owned home be sold

Should the jointly owned home be sold

25The respondent’s cross-motion is brought under sections 2 and 3 of the Partition Act, R.S.O. 1990, c. P.4, for an order that the jointly owned house be listed for sale forthwith. In Latcham v. Latcham, 2002 CanLII 44960, [2002] O.J. No. 2126 the Court of Appeal for Ontario noted the narrow judicial discretion to refuse such an order:

1A fair reading of the motion judge’s endorsement shows that she did not apply the proper standard for the exercise of the court’s discretion to refuse partition under s. 2 of the Partition Act.

2That standard, as the Divisional Court noted, was reaffirmed by this court in Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 and requires malicious, vexatious or oppressive conduct. This narrow standard for the exercise of discretion flows from a joint owner’s prima facie right to partition.

26The recent decision in Kaing v. Shaw elaborates on the connection between hardship and oppression in the context of a family home:

25In Greenbanktree Power Corp. v. Coinmatic Canada Inc., 2004 CanLII 48652 (ON CA), [2004] O.J. No. 5158, at para. 1, the Court of Appeal confirmed that Latcham set out the appropriate test. At para. 2, the Court of Appeal stated:

Co-tenants should only be deprived of this statutory right in the limited circumstances described above, with this caveat. In our view, “oppression” properly includes hardship, and a judge can refuse partition and sale because hardship to the co-tenant resisting

the application would be of such a nature as to amount to oppression.

34This family home is the residence of three young children and the parent who is their primary caregiver. In my view, it is appropriate in the circumstances of this particular case to consider hardship not just to the joint tenant resisting the application but also to the three children in her care who will be directly, and in my view, adversely affected by a forced sale at this time…

36In summary, a sale of the family home at this time would be disruptive to the lives of the children, uprooting them from their neighbourhood, their uncle and aunt, their friends, their school and their daycare, with no evidence that Ms. Kaing would be able to obtain reasonable alternative accommodation. It would be incompatible with their best interests.

37In my opinion, this would amount to hardship sufficient to find that the bringing of the motion for sale is oppressive. It warrants that I exercise my discretion to dismiss the motion.

27The following findings of fact explain my conclusion that the applicant has established that selling the house now would create hardship for herself and the children such as to be oppressive.

28The parties and children only moved into this house in March 2020. The four year old child entered school for the first time in September 2021. Her school is close to the home. The parents separated in December 2021. A sale now would require the children to move into new accommodations with each parent. In my view, selling the house now would create unnecessary hardship for the children having regard to the amount of change they have already experienced in the past year.

29Further, the exposure of the children to adult conflict and tension exacerbates their vulnerability. Since the separation the situation has been fraught with tension, with both parents living and working at home. I accept the applicant’s evidence that the four old year has started wetting herself and her bed and cries unconsolably when her parents argue. Both children appear uncomfortable when their parents are in the same room at the same time. I find that the parents have argued, and video recorded each other during arguments, in the presence of the children. The respondent has also been verbally aggressive to the maternal grandmother. The respondent admitted to police in February 2021 that if the spouses were talking, they were arguing. In his affidavit he also says after nine months separate under the same roof there is going to be considerable tension.

30The police have been called to the house on four occasions since separation. No charges have been laid but the fact that the police have been called by both parents is evidence of conflict and tension in the home. The children are aware of this. In March 2021 the respondent kept the children with him in his room throughout his police interview. In May the Children’s Aid Society identified the concern of risk of emotional harm to the children from exposure to adult conflict.

31The children will also experience a changed environment as result of the parenting order I make. It is in their best interests to experience a period of calm stability in a familiar environment before they have to adjust to further changes that the final determination of the case may bring.

32In that the respondent’s plan is to move in with his sister, he has no immediate need for his share of the proceeds of sale. The same is not true for the applicant. She does not have alternative accommodation readily available to her. The applicant has a claim before the court which cannot be adjudicated on its merits before trial, but that if successful would result in her receiving more than one half of the net proceeds of sale. Unless she knows the outcome of the trial before she must decide where to move, whether she can buy or needs to rent, the potential for two moves rather than one exists for her and the children too.

33The respondent submits that in the circumstances the best outcome for the children is that the house is listed for sale now and sold, thereby facilitating the physical separation of the parents. I disagree. Standing on his right of equal possession should not lever the court into making an order it would not otherwise make. Further, a sale before the distribution of the proceeds of sale has been agreed to or determined by the court runs the risk of the proceeds being held in trust in any event.

34The cross-motion for an order to sell the home before trial is dismissed

Interim parenting arrangements

Interim parenting arrangements

35I find that the applicant was the primary caregiving parent during cohabitation prior to separation. She took a one year maternity leave for each child. She has provided numerous receipts and documents showing that she is the parent who took the children to medical appointments, arranged, and delivered them to and from day care, and registered them in various extracurricular activities. Her mother has provided the childcare while the parents are working. For these reasons I reject the father’s assertion that all parenting tasks were shared equally prior to separation.

36I accept the applicant’s assertions that the respondent has never cared for the children on his own on an overnight basis and does not participate in their bedtime routines. Some of his conduct has been contrary to the children’s best interests. On eleven occasions since April 25, 2021 he has returned the children home on Sundays after 8:45 p.m. despite their bedtime being 8 p.m. In August he took the two year old to the park despite knowing that she had been vomiting overnight. She was sick again at the park, he brought her home, and left the house.

37In his report for February 8, 2021, the attending police officer described the father as disheveled and continuously speaking over both officers present. Some statements he made to the officer appear to be less than reliable. He said his wife kicked him out of the house, but investigation showed she had only said if he was not happy, he could leave. He said his brother in law was wanted by the police; a records check showed he was not. He told the officer that his brother in law was threatening his life but relied on an ambiguous text dated some three months earlier. The respondent also said he could prove his wife had hit him in the past, but nothing could be seen on the video he showed the officer.

38This officer also made a verbal report to the CAS. The Society intake records the officer saying that the father appeared to have some mental health problems, did not seem to be coping well with the marriage breakdown and seemed paranoid and afraid of everyone.

39Since separation the respondent has been more involved with the children. However, his daily time with the two year old has been from 9 a.m. to 11 a.m. when he takes her downstairs with him, and she watches television while he works. He spends Saturday mornings with the children and on Sunday afternoons spends time with them and his extended family.

40The applicant presented a detailed parenting plan for the children. The respondent did not present a parenting plan except to say very generally that when the house was sold, he would move in temporarily with his sister’s family in Kanata and would drive his daughter to and from her school in Orleans as needed. His proposal for a 2/2/3 day rotation of parenting time would entail many transitions for the children in addition to considerable driving time for the four year old for school.

41The temporary residential arrangement that is most in line with what has taken place both before and after separation, and that I find to be in the best interests of the children, is for their mother to be their primary residential parent, and for their father to have regular, frequent parenting time with them when he is not working.

42For these reasons the temporary parenting order is that the children’s primary residential time shall be with the applicant. She shall be the residential parent with all of the parenting time that is not allocated to the respondent.

43The parenting order I would have made for the respondent had I been able to award the applicant sole occupation of the family home would have been this: “ on Wednesday evenings from 4 p.m. until 7:00 p.m., and on alternate Fridays from 5 p.m. until Sunday at 5 p.m. On the Sunday in the weekends when he would not otherwise see the children the respondent shall also have parenting time with them from noon until 5 p.m. The respondent shall be responsible to pick up the children at the start of his parenting time. The applicant shall be responsible to pick up the children at the end of the respondent’s parenting time.”

44These terms shall come into effect if the respondent chooses to move out of the family home. With both parents remaining in the home, the concept of trying to alternate parenting weekends between them seems to invite conflict, especially since neither will be occupied by their employment obligations during the other parent’s weekend. While they continue to occupy the family home, the respondent’s parenting time shall be as follows: the respondent may exercise parenting time every Wednesday evening from 4 to 7 p.m., every Saturday morning from 8 a.m. until noon, and every Sunday afternoon from noon until 5 p.m. This order will facilitate him continuing to take the children out on Saturday mornings and to visit with his extended family on Sunday afternoons, as is his current practice. My order eliminates his former practice of bringing the younger child to the basement with him for two hours each morning while he works. It is not in her best interests to be cared for in a way that consists primarily of screen time.

Interim joint decision making

Interim joint decision making

45Each parent is entitled to make the day to day decisions necessary for the children during their parenting time. In the applicant’s case, this includes the authority to continue to have the maternal grandmother provide childcare for the children when the mother is working.

46Arrangements are already in place for the children’s childcare and school. They already have a primary physician and dentist. No important decisions for them are currently required or foreseeable in the coming months. Accordingly, I order that there shall be no changes made to the enumerated arrangements already in place for the children without parental agreement or further order of the court.

Child Support

Child Support

47The request for a child support order against the respondent was premised on success in achieving an order for exclusive possession of the family home. Accordingly, the order is not made at this time. If the respondent does move out of the family home on a voluntary basis then he shall commence paying child support to the applicant for the two children of the marriage in the monthly amount of $921 based on his annual income of $60,412 commencing on the first day of the month following his departure. At that same time the applicant shall be responsible for making all payments associated with the family residence, subject to any adjustments deemed appropriate at final determination of the case.

48The respondent is ordered to secure his child support obligation by designating his available life insurance from his employment to the mother as trustee for the children. Proof of the amount and designation shall be provided to the applicant within 14 days. The respondent did not ask for a similar order in his favour in his notice of cross-motion. That said, the court would have made a similar order requiring the applicant to maintain life insurance coverage to protect the children in the event of her demise, having regard to her contribution to their support. The parties are strongly encouraged to reach an agreement on this issue.

Orders on Consent

Orders on Consent

49The parties agree that each shall maintain the children as beneficiaries under all of their available health and medical coverage and shall cooperate to utilize the jointly available coverage for the children. Any uninsured expenses and other section 7 expenses shall be shared between them in proportion to their incomes.

Costs

Costs

50Neither party has been fully successful. The applicant has been the more successful party on the parenting issues. If counsel cannot agree on the issue of costs, I shall determine it by written submissions. These shall not exceed three pages plus attachments of Bills of Costs and Offers to Settle the motions. The applicant’s submissions are due by November 22 and the respondent’s by December 9. If necessary, the applicant may deliver a brief reply by December 13, 2021. Cost submissions are to be sent to my attention and emailed to scj.assistants@ontario.ca.

Mackinnon J.