Court File and Parties

COURT FILE NO.: FC-22-598 DATE: 2023/02/21 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: STEPHANIE DAWN CAMPBELL, Applicant AND: ROBERT CAMPBELL, Respondent

BEFORE: Tranquilli J.

COUNSEL: Self-represented Applicant/Responding Party Ms. Coyne, R. for the Respondent/Moving Party

HEARD: February 15, 2023

Endorsement

[1] The respondent father seeks orders for partition and sale of the matrimonial home, directing the applicant to account for, and reverse, changes made to the home since separation, orders directing the applicant to comply with previous orders as to disclosure, payment for housing costs, parenting time and costs and a police-assist order or alternative relief in respect of enforcement of the respondent’s parenting time.

Background

[2] The parties married in April 2015 and separated in February 2021. They reside in Strathroy. They have two daughters, E.C. age 9 and M.C. age 7. The respondent mother has two sons from a previous marriage, ages 14 and 12, for whom she and her former partner have a shared parenting plan.

[3] The applicant is self-employed as a photographer. The respondent is a partner in an IT company.

[4] The applicant mother commenced this application in June 2022 when she was represented by counsel. An Automatic Order was issued on June 2, 2022, directing financial disclosure by both parties.

[5] The parties jointly hold title to the matrimonial home at 469 Head Street North, Strathroy, Ontario. The respondent remained in the matrimonial home following the date of separation in February 2021. The respondent secured rental accommodation; however, he refused to vacate the matrimonial home until a parenting schedule was established. The couple were in high conflict. Police and CAS were involved in mediating their various disputes regarding the children and access to and use of the home and personal property.

Interim Motion – August 2022

[6] In August 2022, the court heard the applicant’s urgent motion for exclusive possession, parenting time, child support and spousal support.

[7] On August 24, 2022, Justice Sah dismissed the applicant’s motion for exclusive possession. Her Honour noted the respondent agreed he would vacate the matrimonial home once a parenting schedule was in place. Her Honour concluded the issue of exclusive possession therefore did not need to be determined. The other orders relevant to this motion are:

a. Interim order for parenting time on a two-week 2-2-3 schedule. b. The parents can vary the schedule by way of agreement signed by the parties and witnessed and dated. c. Exchanges of the children for parenting time require the parent dropping off the children to remain in his or her vehicle. The exchanges are to occur mainly at school drop offs and pick ups. d. Each party shall pay one-half of the mortgage, property insurance and property tax for the matrimonial home until further order of the court or agreement of the parties

[8] The applicant’s claim for interim spousal support was dismissed, without prejudice. Justice Sah ordered the applicant to pay costs of $2,500 to the respondent within 60 days.

Case Conference – October 19, 2022

[9] At the case conference on October 19, 2022, Justice Price ordered the applicant to comply with Justice Sah’s order regarding the sharing of carrying costs of the matrimonial home, to comply with her financial disclosure obligations under the Automatic Order, and to provide a financial statement.

[10] Save for what these reasons will address later, the applicant did not accomplish satisfying any of these disclosure directions up to the hearing of the motion.

Events After the Case Conference

[11] The applicant had been renting commercial space in Strathroy for her photography business. However, in November 2022, she ended her lease and relocated all her business activities to the matrimonial home. The applicant advised this was because she could not afford the space given her post-separation financial responsibilities. As part of this relocation, she renovated one-half of the two-car garage as a space for her photography equipment. This was done without notice to or input from the respondent.

[12] Notwithstanding the orders of Justice Sah and Justice Price, the applicant has not paid for half of the mortgage (but for one month, which was .50 short), property insurance and property tax. She also has not paid the costs order. The respondent also objects to the applicant’s refusal to remain in her vehicle during exchanges of the children.

[13] The parties have engaged in discussions about the sale of the matrimonial home since at least September 2021. They each arranged for appraisals of the property. There are now four appraisals, which, depending upon their conditions, estimate the value of the property between $550,00 and $850,000. The applicant made an offer to purchase the respondent’s interest, which was rejected.

Issues

[14] I will address the issues on this motion as follows:

a. Is the respondent entitled to partition and sale of the matrimonial home? b. Should compliance orders issue in respect of the orders regarding the parenting schedule, housing costs, and costs? c. What remedy, if any, is appropriate to address issues in respect of the interim parenting schedule?

[15] The applicant requested an adjournment of this motion so she could retain counsel. She discharged her previous counsel after the August 2022 motion and has reportedly been in the process of retaining new counsel. She submitted she had only recently received Legal Aid approval and was not able to book an initial meeting with potential new counsel until later this month. The court was sympathetic to her request; however, dismissed the adjournment request given the circumstances of this matter. The issue of the disposition of the matrimonial home has been at the forefront of this matter since before the application commenced and was in evidence on the motion in August 2022. The applicant has known of the respondent’s position since at least September 2021, before the inception of this application, and was formally on notice of the date for this motion when it was fixed in the fall 2022. This matter has to be addressed without further delay given the evidence as to the parties’ financial circumstances.

[16] The respondent raised objections to material filed by the applicant. The applicant filed three affidavits in ostensible initial response to the motion. The respondent noted there were several irregularities with these materials in breach of the Practice Directions; however, he was willing to overlook these given her self-represented status. Nevertheless, he took issue with the three further affidavits and written argument served by the applicant and uploaded to CaseLines in ostensible reply to the applicant’s reply the day before the motion. Apart from timeline and content requirements, the respondent also noted the affidavits contained hearsay and double hearsay.

[17] The applicant apologized and explained she is doing her best to follow court protocols. The court acknowledges the respondent’s concern and is similarly vexed by the disregard to the court’s Practice Directions that is seen in far too many matters. These tactics delay the court process and rob other parties of valuable court time. However, in the circumstances of the applicant’s self-represented status and the dismissal of her request to adjourn the motion, the court was prepared to exercise some leniency. To the extent that any evidence in the applicant’s further responding affidavits would disadvantage the respondent on the material issues in this motion, the court will disregard this information.

[18] The applicant is, however, put on notice, that she should expect to be held to strict adherence to the Family Law Rules and the Notice to Profession effective August 2, 2022 going forward in this matter, whether she is self-represented or represented. The Notice to Profession can be found at: Notice to the Profession, Parties, Public and the Media | Superior Court of Justice (ontariocourts.ca).

1. Is the respondent entitled to partition and sale of the matrimonial home?

[19] The respondent seeks an order for partition and sale of the matrimonial home on terms including for selection of realtor, staging, dates for listing, cooperation of the respondent in showing the home. The respondent also seeks terms requiring the applicant to reverse the changes she made to the home without his consent.

[20] The respondent submits that the financing of the matrimonial home is unsustainable. He pays rent for his own accommodation, where the children exercise their parenting time with him. He is also responsible for contributing to half of the carrying costs of the matrimonial home. Yet, notwithstanding the court order for the parties to equally share in these expenses since August 2022, the applicant has failed to pay her contribution to the mortgage, insurance and tax obligations, in breach of Justice Sah’s order. The respondent has been making the full payments to protect his credit rating; however, he has been running at a deficit and he has nearly exhausted his available credit. He started with no debt at the time of separation and is now at approximately $60,000 in debt. His financial statement shows he has just under $2,000 left on his line of credit.

[21] The applicant submits that the matrimonial home should not be sold. She wishes to purchase the respondent’s interest in the home. She contends the respondent is unreasonable on the property valuation for a buy-out. She is pre-approved for a mortgage which her parents will co-sign. She attests to concerns about the disruption of moving on the parties’ children and her two sons, inability to operate her photography business while she is without spousal support, a lack of other housing options near the children’s school, and that equalization is yet to be determined. Her predominant concern is the effect of having to move where her blended family of four children risk being dislocated and unreasonably prejudiced by an order to sell.

[22] A comprehensive summary of principles a court should consider in a motion for partition and sale in the family law context is set out in Dhaliwal v Dhaliwal, 2020 ONSC 3971 at para. 16.

[23] A joint tenant has a prima facie right to an order for the partition and sale of jointly owned property. A court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made. The opposing party must show malicious, vexatious, or oppressive conduct relating to the partition and sale of the home in order to avoid the sale.

[24] I am satisfied that the matrimonial home must be sold as proposed by the respondent for the following reasons:

a. The respondent’s financial statement demonstrates that his monthly expenses exceed his income such that he is falling further and further into debt each month. He has nearly exhausted his credit. This financial predicament is exacerbated by the fact that the applicant has not been contributing to the mortgage, insurance, and property taxes, notwithstanding a clear court order to do so. The carrying costs are unsustainable and I have little hesitation in concluding that sale of the matrimonial home would be the inevitable result at trial. b. I have considered the impact on the children. The parties have an interim shared parenting schedule in place. The applicant’s emphasis on the children’s interests in remaining in the matrimonial home fails to account for the fact that the parties’ daughters also live in their father’s rental accommodation. The stability of that housing is at risk given the respondent’s precarious financial position. c. I am not persuaded that the effect of the sale on the applicant’s photography business is malicious, vexatious, or oppressive or is otherwise a sufficient reason in law to refuse the sale. The applicant’s affidavits filed in response to this motion claim she will suffer extreme financial hardship from the sale as she will have to cease business activities while the house is listed. She believes the respondent is motivated to shut down her photography business and is unreasonably insisting on a higher appraised value than her appraisals. She also claims there are limited housing options from which she can operate her photography business given the height and space requirements. These concerns are difficult to reconcile with her earlier statements about her photography business in her affidavit of August 19, 2022 filed in support of her motion for exclusive possession and spousal support. At that time, the applicant deposed that her photo business had operated as a side business to generate extra income to assist with the children’s extra costs such as activities and that she only worked a couple of days a week for one to two hours. Moreover, the applicant had rented a commercial space for her photography studio and only relocated it to one-half of the matrimonial home garage in November 2022, at a time when she knew that the sale of the matrimonial home was a live issue. She has known since at least September 2021 that the disposition of the matrimonial home had to be addressed and it was in play during her motion for exclusive possession in August 2022. In my view, it is unreasonable for the applicant to be able to hold up the sale of the matrimonial home through relocating her photograph equipment to the garage. d. I acknowledge that court should guard against potential prejudice that could result from ordering the home to be sold where there are realistic issues or claims that are yet to be determined on a final basis. However, the parties have been unable to consider finalizing the financial issues, such as spousal support and equalization, because of the applicant’s own delay in completing financial disclosure. In the meantime, the respondent’s financial situation worsened and has therefore made sale of the home without further delay an imperative. e. I am not persuaded that the applicant will be unable to arrange a reasonable replacement accommodation, either through purchasing or renting other accommodation. The appraisals she relies upon show there is a housing market with comparable homes. While those comparable homes may have sold, it is reasonable to expect that there continues to be a stock available. The respondent has also demonstrated that there are rental accommodations available in Strathroy and within what the applicant previously deposed she could pay toward the matrimonial home carrying costs. The applicant is also pre-approved for a mortgage.

[25] I understand that the applicant wishes to purchase the respondent’s interest in the matrimonial home but that they continue to disagree about the price. The court cannot order one joint tenant to sell their interest to another. In the circumstances, the only practical solution is to list the house for sale and have its value determined in the open market. The applicant is at liberty to make an offer in that process.

[26] An order will therefore issue for the sale of the matrimonial home on the terms sought by the respondent.

[27] The applicant must also account for the changes she made to the matrimonial home in relocating her photography equipment. She refused to reverse the changes. These changes were made without the knowledge or consent of the respondent and when the applicant knew the sale of the matrimonial home was in issue and headed to a motion date. It was not reasonable to make the changes in these circumstances.

[28] An order will also issue requiring the applicant to cease and desist in making any further changes to the home, to produce the permits she obtained, if any, in making the changes and authorizing the respondent and his appraiser to access the home to assess the changes and possible impact on the home value. Given the past challenges in achieving timely compliance with court orders, the court finds that it would not be feasible to require the applicant to reverse the changes at her own expense. The respondent will therefore have the option to reverse any of the unauthorized changes, including through hiring third parties and the applicant shall permit access to the home for this purpose on 24 hours notice. The applicant will reimburse the respondent for the cost of rectifying these changes, which reimbursement shall be paid to the respondent from the applicant’s share of the proceeds.

2. Should compliance orders issue in respect of the orders regarding the parenting schedule, housing costs, and costs?

[29] The court did not hear a reasonable explanation for the applicant’s failure to share in the carrying costs of the home; in contravention of two court orders and her failure to complete her financial disclosure; in contravention of three court orders. Finally, there was no explanation for the failure to pay the costs order of Justice Sah.

[30] The applicant appeared to be of the view that she did not need to contribute to the carrying costs due to a vaguely described right to claim a set off against other expenses. She also claimed she needed proof that the respondent paid the mortgage and that she did not have access to that type of information during their marriage because he was financially controlling. I do not accept that the applicant has had no ability to confirm the amounts to pay for the carrying costs of the matrimonial home. She is on title. She can make inquiries of the bank or of respondent counsel.

[31] The most she could explain about her lack of financial disclosure is that she did not understand the issues. The court acknowledges that this can be an overwhelming process for parties. However, the applicant has had ample opportunity to clarify her disclosure obligations. After a delay of many months, she has only now provided some updated information, after the motion was served. The Automatic Order was issued because of her application when she was represented by counsel. If there was any confusion, she had a further opportunity for clarification at the case conference with Justice Price, where he again ordered her to comply.

[32] The court has some reservation about whether the applicant will, in fact, comply with further orders. The applicant must understand that an order is an order, not a suggestion and it must be obeyed: Gordon v. Starr. If the applicant takes issue with an order her options are either to appeal or to seek to vary the order, depending upon the circumstances.

[33] The applicant will be given a further opportunity to comply with the orders. The applicant is on notice that she is at risk of serious consequences should non-compliance continue. Under rule 1(8) of the Family Law Rules, these consequences include dismissing a claim, striking out her application or a future motion brought by her, precluding her from obtaining a further order from the court or a contempt motion.

[34] As it relates to the housing carrying costs, and the unpaid costs order, this court will direct that all sums should be paid from the applicant’s share of the net proceeds of the sale of the matrimonial home so as to avoid any future misunderstandings about the responsibilities.

3. What remedy, if any, is appropriate to address issues in respect of the interim parenting schedule?

[35] The respondent seeks the court’s assistance in ensuring the applicant follows the terms of the interim parenting order established by Justice Sah in August 2022.

[36] The respondent’s central concern arises from one recent incident of alleged withholding of their child, E.C. in January 2023. E.C. apparently learned from the applicant that the respondent is not her biological father. The applicant did not drop off E.C. for his parenting time and she accused him of favouring their other child, M.C. E.C. called the respondent the next day and told him she no longer wanted to come to his home. The respondent could hear the applicant whispering to her in the background. E.C. was brought to the respondent after the intervention of counsel. However, she exited the car when she dropped the child off. There have been similar concerns about her not remaining in her car at the children’s school.

[37] The applicant claims she was compelled to disclose to E.C. that the respondent was not her father because of rumours and threats the respondent himself had circulated in the community. She did not want E.C. learning about her parentage from others. The respondent denies these allegations.

[38] The applicant also contends the respondent has acted improperly during exchanges of the children. At the end of January 2023, she was at the school to pick up her son when the respondent was there to pick up their daughters. The applicant claims he “glared at me menacingly” when he walked past her car with their children. The children called out to her and so she got out to give them hugs before they left with their father.

[39] The court is unable to assess the reasons and motivations for the disclosure of E.C.’s parentage from these competing affidavits. On either version of events, it is extremely disturbing that this failure in child-focused behaviour directly led to upsetting a nine-year old child. The expectation is that both parties are to encourage their children to attend for parenting time with the other parent, will support the children’s relationship with the other parent, will respect the parenting schedule, and will not engage in conduct that undermines the child’s relationship with the other parent.

[40] The order made specific provision for the parent dropping off the children to remain in the vehicle. This was intentional and rationally connected to minimizing the opportunities for the children to become involved in adult conflict that had become all too frequent before the respondent vacated the matrimonial home following the August 2022 motion. The order did not necessarily address the scenario that unfolded at the school, and it would have been optimal for the children to feel comfortable in greeting the applicant before leaving with the respondent. However, the court agrees with the respondent that in these circumstances, one parent should not be present when it is the other parent’s turn to either pick up or drop off the children at school. The applicant should be able to minimize the possibility of contact with the children when picking up her son if she waits for him at the other entrance.

[41] The applicant had initially sought a police assist order to enforce the parenting schedule; however, she acknowledged it was unlikely the court would be persuaded one is warranted. Indeed, the court’s strong preference is to avoid a police assist order given the history of prior police involvement in the adult conflict. It is not in the best interests of these young children to have the trauma of police involvement in parenting exchanges. The court is also concerned that such an order would be an all too tempting tool for the parties to resort to with frequency in the event of further disagreements. Finally, there has been only one instance of apparent withholding and which the applicant rectified by the next day. There is little to justify escalating the enforcement of the parenting schedule by police assistance. However, if incidents of withholding and conflict at exchanges persist, the court may have little option.

[42] In the circumstances, the court accepts the respondent’s proposal that he be entitled to one day of make-up time with both children for any day when the applicant withholds either child. This will be a reasonable means by which to motivate compliance with the parenting schedule.

[43] An interim order will therefore issue as follows:

a. Orders to issue in accordance with paragraphs 2, 3, 4, 5, 7, 9, 10, 11, 12, 13, 14, 15, 16, 19, 20, 21 and 22 of the respondent’s notice of motion dated January 24, 2023. b. The respondent shall have one day make-up time with both children for any day when the applicant withholds either child. c. The order may be issued without the applicant’s approval of the draft order as to form and content.

[44] The respondent was entirely successful on this motion and is presumptively entitled to his costs. In the event the parties cannot resolve costs, the respondent shall deliver his written submissions by March 8, 2023 and the applicant shall deliver her written submissions by March 17, 2023. eWritten submissions shall be limited to two pages, 12-point font, excluding any offers to settle or cost outlines.

Justice Tranquilli Date: February 21, 2023