COURT FILE NO.: FC-19-1778
DATE: 2022/08/30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lawrence Patrick O'Brien, Applicant
AND:
Barbara Jane Fitzgerald-O'Brien, Respondent
BEFORE: Justice Ian Carter
COUNSEL: Judy Louisa Antymniuk for the Applicant Michael A. Chambers for the Respondent
HEARD: August 11, 2022
ENDORSEMENT
[1] The Applicant brings a motion for orders for the sale of the jointly owned matrimonial home, certain documentary disclosure and costs. The Respondent brings a cross-motion seeking interim exclusive possession of the home along with its contents. The two principal claims are inter-related. The cross-motion for interim exclusive possession serves as the sole basis for opposing the application for the partition and sale of the home.
Background
[2] The parties were married on May 18, 1991. There is a disagreement as to the parties’ date of separation. The Applicant claims it to be March 2014 whereas the Respondent says it was January 2008.
[3] The parties had two children during their marriage who are both adults now. Nathan is 29 years old and lives with the Applicant although he may be moving out. Devin will be 28 years old and lives with the Respondent. He is currently not working.
[4] Both parties are 69 years old. The Applicant is self-employed working in the computer field. He anticipates his income for 2022 will be $65,000. His stated plan is to retire in January,
- The Respondent is a Registered Practical Nurse employed in the obstetric unit at the Queensway Carleton Hospital where she has been employed since 1999. Prior to that she was employed in the same capacity since 1982 at the then Grace Hospital. The Respondent anticipates her earnings to be $62,631.20 in 2022. The Respondent has a pension through her employer. The Applicant does not.
[5] The matrimonial home located in Carp, Ontario is jointly owned by the parties. It has no mortgage or other encumbrances registered against it. The Respondent has resided in the home since May 9, 2014. The Applicant has not returned to the home since that date. He has since purchased a home in Stittsville which has a mortgage of approximately $160,000.
[6] On his departure from the home, and for several years thereafter, the Applicant made no mention of any request for the sale of the home. However, since December 2018, the Applicant has requested that the home be sold and has made efforts to affect that desire, ultimately culminating in this motion.
Sale of the Matrimonial Home/Exclusive Possession
Position of the Parties
[7] The Applicant submits that he has the right to the partition and sale of the jointly owned matrimonial home and that the court has only a narrow discretion to refuse the sale. The Respondent has not established any valid grounds to oppose the sale.
[8] The Applicant says he does not owe the Respondent an equalization payment and the parties do not have any other significant assets to equalize apart from the Respondent’s pension. Accordingly, the sale of the home is inevitable. The Respondent has had the benefit of living in the home since 2014. The Applicant needs his equity in the home in order to pay off his debts and to retire.
[9] Furthermore, there is no basis for an order of interim exclusive possession. The Respondent has had de facto possession of the home since May 2014 and there is only an adult child residing with her who does not fall within the scope of the Family Law Act, R.S.O. 1990, c.F.3, as am. She is financially unable to maintain the home. Her claim for this relief eight years after residing in the home should not be allowed to frustrate or delay the sale of the home.
[10] The Respondent resists the sale of the home primarily on the basis of her claim for exclusive possession. She says she has no alternate accommodation to move to. On her modest income, the fact that the matrimonial home is mortgage free at least allows her to maintain the standard of housing accommodation she enjoyed during the marriage. This will not be the case should the home be ordered sold and she is therefore forced to find a new place to live.
[11] It is the position of the Respondent that if the matrimonial home is ordered sold this will deprive her of the ability to advance her permanent exclusive possession claim at the final hearing of this proceeding.
Analysis
[12] The right to partition and sale of a jointly owned home can be found in ss. 2 and 3 of the
Partition Act, R.S.O. 1994, cP.4. Those sections read as follows:
- All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.
3.(1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.
[13] In addition, under s. 10(1) (c) of the Family Law Act, the court may make an “order that the property be partitioned or sold for the purpose of realizing the interests in it…”
[14] An order for partition and sale of a jointly owned matrimonial home should be ordered, unless the spouse opposed to the order can demonstrate that his or her right to exclusive possession, an equalization payment, or some other possible relief pursuant to Part I of the Family Law Act, would be prejudiced. The onus to demonstrate such a possible prejudice lies with the party opposing an order under section 2 of the Partition Act. (Bonnick v Bonnick, 2016 ONSC 657 at para. 3)
[15] In this case, the Respondent resists the sale of the jointly owned home solely on the basis that she wishes exclusive possession of the home, both temporarily and permanently.
[16] Section 24(3) of the Family Law Act establishes the factors a court must consider on a motion for exclusive possession. Section 24(3) reads as follows:
(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;
(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.
[17] The moving party seeking exclusive possession of a matrimonial home must establish on the balance of probabilities that the evidence relied upon falls within the provisions of section 24
(3) (Hill v Hill, 2017 ONSC 1683 at para. 91).
[18] The purpose of section 24(3) is to preserve stability and continuity in the lives of children while their parents’ legal issues are determined (Jiang v. Zeng, 2019 ONSC 1457 at para. 38).
[19] The evidence on the factors set out above does not establish that the Respondent should have exclusive possession of the home.
[20] Both parties are in approximately the same situation financially and there is no written agreement between them as regards to the home. The Respondent is not relying on allegations of violence perpetrated by the Applicant for the purposes of this motion. There is a dearth of evidence on the availability of other affordable and suitable accommodation. In her affidavit, the Respondent claims that there is no alternate accommodation for her and her son to move into yet has provided no evidence so support that bare assertion.
[21] Importantly, there are no dependent children such that an order for exclusive possession is required to preserve stability in their lives while the legal issues are determined.
[22] The cases relied on by the Respondent are all distinguishable. In both Barber v. Stratton, 2022 ONSC 4376 and Kaing v. Shaw, 2017 ONSC 3050, exclusive possession was ordered in significant part because it was in the best interests of the dependent children. As previously noted, there are no dependent children to consider on this motion. In Trush v. Trush (unreported), exclusive possession was ordered because of the considerable disparity of income between the parties and the husband’s claim for spousal support. Such financial disparity does not exist in this case. If anything, the Respondent may be required to make an equalization payment to the Applicant.
[23] As in the case of Khan v. Khan, 2019 ONSC 4687, the Respondent is not really seeking exclusive possession pending the sale of the matrimonial home. She already has had what amounts to exclusive possession for the last eight years. The Respondent’s motion is really a motion that the home not be sold at all.
[24] The difficulty with that position is that a claim for permanent exclusive possession is not realistic. The court cannot compel one joint tenant to sell to the other. Nor can it give either joint tenant a right of first refusal. The only possibility would be that 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 seemed viable -- and especially if it would benefit a child -- the sale could be delayed to allow proper consideration of that option (Dhaliwal v. Dhaliwal, 2020 ONSC 3971).
[25] No particularized proposal has been provided here. Given the Respondent’s current financial circumstances as set out in her affidavit and given that under any scenario the Applicant will not be required to make an equalization payment, it is difficult to see how the Respondent could make such a proposal. The sale of the home is inevitable. The Respondent has benefited from exclusive possession of the matrimonial home since 2014. There is no valid reason to delay the sale any longer.
[26] The Applicant has provided a draft order with a number of terms relating to the sale. The Respondent opposed only one of the terms – the requirement that the house remain in good condition. After some discussion, the parties agreed that the wording should be revised so that
the Respondent is to ensure the home is presentable for showings. Otherwise, the Order will go as set out in the Applicant’s draft order.
Disclosure
[27] The Applicant initially sought a number of materials by way of disclosure. Many of those have since been provided by the Respondent. What remains at issues are the values for all the Respondent’s bank accounts, TFSAs and RRSPs as of March 9, 2014. The Respondent has provided evidence that she cannot secure copies of the statements for those accounts from Scotiabank as a result of retention polices. As I result, I will order that Respondent provide the estimated values only and statements as close as possible to that date.
Order
[28] I make the following orders:
The jointly owned home located at 3115 Old Almonte Road, Carp, Ontario shall be listed for sale within 30 days of the date of this Court Order in "as is" condition with an agreed upon real estate agent. In the event that the parties are unable to agree upon a real estate agent, an agent shall be designated by the court with such other terms required to ensure the listing and sale of the home by way of a procedural motion within 15 days of the date of this Order.
The home shall be listed at a price recommended by the realtor and that the parties shall accept all reasonable offers for the home as recommended by the realtor.
The Respondent shall ensure that the house is presentable for showings.
The Respondent shall provide the following financial disclosure to the Applicant within 30 days of this Order: estimated values for all of her bank accounts, TFSAs and RRSPs as of March 9, 2014 and statements as close as possible to that date.
Costs
[29] If the parties are unable to agree on the quantum of costs for this motion by September 26, 2022, written submissions of no more than three pages, along with bills of costs and offers to settle, may be provided to me at 10 day intervals and I will make a decision. These submissions are to be sent to scj.assistants@ontario.ca and to my attention.
Carter J.
Date: August 30, 2022
COURT FILE NO.: FC-19-1778
DATE: 2022/08/30
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Lawrence Patrick O'Brien, Applicant
AND:
Barbara Jane Fitzgerald-O'Brien, Respondent
BEFORE: Justice Ian Carter
COUNSEL: Judy Louisa Antymniuk for the Applicant
Michael A. Chambers for the Respondent
ENDORSEMENT
Carter J.
Released: August 30, 2022