COURT FILE NO.: FC-21-1663
DATE: 2022/07/26
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ian Barber, Applicant AND Kysha-Aaron Stratton, Respondent
BEFORE: Ryan Bell J.
COUNSEL: Michelle Williams, for the Applicant Robie Loomer, for the Respondent
HEARD: July 22, 2022
ENDORSEMENT
Introduction and factual background
[1] The applicant moves under ss. 2 and 3 of the Partition Act[^1] for an order that the property known as 8737 Bank Street RR1, Vernon, Ontario be sold and the proceeds of sale be held in trust pending further order or agreement of the parties.
[2] The trial of this proceeding has not been scheduled; the parties have not attended a settlement conference or a trial management conference.
[3] The applicant says that the parties cohabited for approximately seven years. The respondent says that they began living together as unmarried partners in 2014. The parties separated on a final basis in December 2019 as a result of an incident of violence in the family home.
[4] There is one child of the relationship, S.B., who is six years old. The respondent has a child from a previous relationship, X.S., who is now 16. X.S. lived with the parties and S.B. in the family home.
[5] The parties are joint owners of the home. The home was purchased on September 26, 2018 for $227,000.
[6] In late December 2019, the applicant was charged with assault with a weapon on X.S. in the family home. The applicant pled guilty to the charge and has served his sentence. His probation includes a prohibition on contacting X.S. In 2021, the applicant was found guilty of one count of breach of probation by contacting X.S.
[7] The parties are engaged in litigation with respect to the parenting and support of S.B. The respondent has made a trust claim that the home should be in her name in sole title and that the applicant is holding his share in trust for her. It is in this context that the applicant’s motion for partition and sale arises.
Position of the parties
[8] The applicant submits there is “no outcome in which the Respondent can succeed in a claim for resulting trust that would award her the entire equity in the home gratuitously.” The applicant contends that because the remaining issues to be determined on a final basis at trial would not be impacted by the sale of the home and because the applicant – who currently resides with his parents – is unable to find independent residence due to the carrying costs of the home, the court should order the sale of the home on this interim motion.
[9] The respondent opposes the motion. The respondent’s position is that the court should not order the sale of the home on an interim motion because it would prejudice her trust claim at trial. The respondent also submits that the court should not make the order requested where the applicant has engaged in family violence and oppression and where a move would negatively impact on the well-being of the children.
Legal principles
[10] 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: Lalonde v. Agha.[^2]
[11] 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: Martin v. Martin.[^3] As the court stated in Hutchison-Perry v. Perry[^4]:
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…In such a 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…or, at the very least, that the opposing spouse’s arguable claims under the FLA would be prejudiced…[citations omitted]
[12] The relevant considerations[^5] in the circumstances of this case are:
- 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.
- The court must consider the impact of a proposed sale on children or a vulnerable spouse, including emotional impact. The fundamental need to ensure that they have appropriate availability and affordability of alternate housing must be considered.
- Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course. 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.
- The availability of a trial within a short period might reduce the pressure for an immediate sale.
- A request for a 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 while a school year is in session.
- The stage of a child’s academic progress may be relevant.
- The mere existence of children in a household is not in itself sufficient to oppose a sale; the party opposing the sale must establish a likely negative impact more serious than the inevitable adjustments and disruptions which all families face when parents separate.
- 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.
Analysis
[13] The respondent has been living in the home with S.B. and X.S. since the parties separated in December 2019. As a result of the assault on X.S. by the applicant, the applicant is prohibited from returning to the home. Since 2019, the applicant has lived with his parents at their home in Metcalfe.
[14] The applicant’s income in 2021 was $91,641. The respondent’s income in 2021 was $57,647. There is no evidence that the monthly carrying costs on the home are currently unsustainable. The applicant’s stated reason for the motion is that he cannot continue to carry the costs of the home if he wishes to find his own residence independent of his parents and pay child support. With respect, the applicant will be no further ahead if the order he requests is made because the proceeds will be held in trust pending further order of the court or the parties’ agreement.
[15] The applicant asserts that the respondent cannot succeed in her claim for a resulting trust. However, the evidence before me regarding the intentions of the parties at the time of purchase, payment of the down payment on the home, payment of the mortgage, and payment of the monthly household expenses is conflicting.
[16] The home was purchased for $227,000, with a mortgage registered against the home in the amount of $224,276. There is no dispute that title is registered in the name of both parties. Where a property is held in the joint names of spouses, there is a presumption of their intent to own the property as joint tenants: Silva v. Silva.[^6] The applicant relies on this presumption in support of his position on this motion. The applicant’s evidence is that he provided the funds for the down payment on the house in the amount of $15,086 by a withdrawal from his RRSP.
[17] At the time of the purchase, the applicant’s income was $87,000; the respondent’s income was $34,000. It is the respondent’s evidence that in order to get the mortgage, she had to have the applicant on title with her. She maintains that the applicant made no contribution to the purchase price and that he told her at the time that the home was hers and not his. The respondent says she paid both the deposit and the down payment from her personal bank account. She says that the applicant’s withdrawal from his RRSP was used by the applicant to pay his debts and personal expenses.
[18] The applicant maintains that since December 2019, he has paid and continues to pay for the mortgage on the home. The respondent says that she paid the mortgage[^7] and the majority of the household expenses. According to the respondent, the applicant transferred $1,150 into her account each month, not as a mortgage payment, but to help with the running of the household. The applicant’s transfers to the respondent continued after December 2019; the respondent considered these payments to be in the nature of child support. Since January 2021, the applicant has paid bimonthly amounts towards the mortgage. The applicant states that because he has been carrying the cost of the mortgage on his own, he has not been paying child support.
[19] There is also evidence from the respondent that she carried out repairs and renovations on the home over the years in the belief that she was the sole owner of the home and that the applicant was on title only as a requirement for her to obtain the mortgage.
[20] The respondent’s evidence is that her searches of the rental market in her area have yielded no apartments or houses available for rent. If the home is sold, her options would be to move closer to her employment in Ottawa, allowing her to save on fuel costs to offset increased rent, or to move further away from Ottawa to find affordable accommodation. She anticipates that she would be in debt each month if she were to rent in Ottawa.
[21] If the respondent is required to move, she would also have to find new after school care for S.B. The respondent fears that the long waiting lists for after school programs could put her job at risk.
[22] There is evidence before me as to the impact an order for the sale of the home would have on X.S. and S.B. The respondent states that X.S. “has gone through a lot while we were with [the applicant].” X.S. suffers from anxiety and depression. He will be starting grade 12 in September. X.S. has a trusted counsellor at his current high school who is able to keep him calm and focused. The respondent has expressed concern that if they are required to move before or during X.S.’s final year of school, X.S. will not likely achieve the marks he needs to be admitted into college.
[23] S.B. will be entering grade 2 in the fall. The respondent states that S.B. “was traumatized by living with [the applicant] and the assault which she witnessed [him] inflict on [X.S.].” The respondent’s evidence is that S.B. “has only just begun to get her life back and become more independent and confident in herself.” The respondent expresses concern that moving to a new home “far away” would adversely impact S.B. and her ability to adapt to a new environment.
[24] The respondent’s evidence regarding the impact a sale of the home would have on the children is uncontroverted. The respondent submits that the evidentiary record of family violence amounts to oppressive conduct on the part of the applicant and that the court should refuse partition and sale on this basis alone. The respondent relies on the Divisional Court’s decision in Kaphalakos v. Dayal[^8] and the Court of Appeal’s decision in Greenbanktree Power Corp. v. Coinamatic Canada Inc.[^9] The applicant’s position is that, to avoid the order, the respondent must show malicious, vexatious, or oppressive conduct relating to the partition and sale issue itself.
[25] If the applicant is successful on his motion, the result would be the sale of the property. The sale of the home would require the children to move from the area where they are living, at a time when they are vulnerable as a result of the applicant’s own conduct. This hardship militates strongly against making an order for the sale of the home at this interim stage of the proceedings.
[26] The applicant has provided no compelling reason for the home to be sold at this time, prior to trial. Ordering the sale of the home at this stage of the proceeding would, however, prejudice the respondent’s trust claim at trial. There is compelling evidence that the children would suffer a negative impact if they were required to move. There is uncontroverted evidence regarding the respondent’s inability to find suitable rental accommodation for herself, X.S., and S.B. in the area in which they currently reside.
[27] Having regard to all the circumstances of this case, I am not prepared to make a sale order at this stage of the proceeding.
Conclusion
[28] For these reasons, the applicant’s motion for partition and sale is dismissed.
[29] In the event the parties are unable to agree on costs of the motion, they may make written submissions limited to a maximum of three pages. The respondent shall deliver her costs submissions by August 9, 2022. The applicant shall deliver his responding submissions by August 23, 2022. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
Madam Justice Robyn M. Ryan Bell
Date: July 26, 2022
COURT FILE NO.: FC-21-1663 DATE: 2022/07/26
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Ian Barber, Applicant AND Kysha-Aaron Stratton, Respondent
COUNSEL: Michelle Williams, for the Applicant Robie Loomer, for the Respondent
ENDORSEMENT
Justice Ryan Bell
Released: July 26, 2022
[^1]: R.S.O. 1990, c. P.4. [^2]: 2021 ONSC 5223. [^3]: 1992 CanLII 7402 (ON CA), [1992] O.J. No. 656. [^4]: 2019 ONSC 4381, at para. 37. [^5]: As summarized in Dhaliwal v. Dhaliwal, 2020 ONSC 3971, at para. 16. [^6]: (1990), 1990 CanLII 6718 (ON CA), 30 R.F.L. (3d) 117; Family Law Act, R.S.O. 1990, s. 14(a). [^7]: At least until January 2021. [^8]: 2016 ONSC 3559. [^9]: 2004 CanLII 48652 (ON CA).