Court File and Parties

COURT FILE NO.: FC 28/21 DATE: 2023/05/24 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Kellie Marie Williams, Applicant AND: Grant Joseph Williams, Respondent

BEFORE: HENDERSON J.

COUNSEL: Lisa M. Walters, for the Applicant Iain D. Sneddon, for the Respondent

HEARD: April 28, 2023

Endorsement

[1] The parties have each brought motions seeking conflicting relief. The applicant seeks an order which includes selling the matrimonial home, occupation rent in the alternative, an advance of $40,000 towards legal expenses and spousal support. In response, the respondent requests an order for exclusive possession of the matrimonial home, child support and s. 7 expenses reimbursed retroactive to January 1, 2020 and an appraisal/valuation of certain property.

[2] The issues may be summarized as follows:

• Whether the matrimonial home shall be listed for sale pursuant to the Partition Act, R.S.O. 1990, c. P.4.
• Whether the respondent should be granted indefinite exclusive possession of the matrimonial home.
• The quantum of spousal support.
• Determination of the applicant’s income for the purpose of calculating spousal support which involves the consideration of two sub issues: whether the applicant can share in the respondent’s post separation increase in income and whether the respondent can exclude a portion of his income which he attributes to inherited funds.
• Quantum of child support payable by the applicant for two children attending post secondary institution away from home.

[3] At the outset I advised counsel that I would not entertain arguments regarding retroactive support, occupation rent, or the exclusion of income allegedly tied to inherited funds. For a variety of reasons these issues are best left to trial where a fuller evidentiary record would be provided to better assist their determination.

Background

[4] The parties were married on October 12, 2007. They dispute the date of separation with the applicant saying July 1, 2019 and the respondent saying January 1, 2019. For the purposes of this motion, the difference matters not.

[5] There are two children of the marriage: RW who is in third year university and MW who is just completing first year at university. Both children attend school outside of London. Both children also suffer from mental health issues that go back to their childhood. According to medical evidence put in by the respondent, both children exhibit serious symptoms related to anxiety. Although life with anxiety is a daily struggle, their conditions have stabilized sufficiently that they have been successful in their studies.

[6] The applicant works for the City of London, and she earned $56,538 in 2021 and $57,862.04 and paid union dues of $796.08 in 2022. The respondent is a financial advisor and based on his Notice of Assessment for 2021 he earned $419,527.

[7] The respondent has resided in the matrimonial home with the children since the parties separated. He has paid the applicant spousal support in the amount of $2,750 per month since November 2019. He has also carried all expenses of the home and the children. The applicant has not paid any child support since separation, although she says she has contributed to some of the children’s expenses.

Exclusive Possession v. Sale of Matrimonial Home

[8] The matrimonial home is located at 932 Farnham Road, London, Ontario. The parties share joint ownership. The applicant vacated the home on or about July 1, 2019. She has conducted two appraisals on it in recent years: one dated June 2021, for at least $730,000 and another dated April 21, 2023 for $845,000.

[9] The applicant seeks an order selling the matrimonial home which the respondent opposes. He wants to buy out the applicant’s interest which she does not oppose but he has done nothing to effect such a buy out. He says he needs to know the final accounting in respect of an equalization payment, the retroactive accounting for both parties regarding spousal and child support and general post separation accounting since the parties separated four years ago.

[10] The respondent, for his part, seeks an order for exclusive possession. He bases his request primarily on evidence that would suggest that the matrimonial home is important to assisting the children with their mental health issues.

(i) The Legal Framework

[11] Section 24 of the Family Law Act, R.S.O. 1990, c. F.3, (“FLA”), permits the court to grant exclusive possessions of the matrimonial home and its contents to a spouse regardless of ownership. The relevant paragraphs are as follows:

Order for possession of matrimonial home

24 (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,

(a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents;

(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;

(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;

(d) direct that the contents of the matrimonial home, or any part of them,

(i) remain in the home for the use of the spouse given possession, or

(ii) be removed from the home for the use of a spouse or child;

(e) order a spouse to pay for all or part of the repair and maintenance of the matrimonial home and of other liabilities arising in respect of it, or to make periodic payments to the other spouse for those purposes;

(f) authorize the disposition or encumbrance of a spouse’s interest in the matrimonial home, subject to the other spouse’s right of exclusive possession as ordered; and

(g) where a false statement is made under subsection 21 (3), direct,

(i) the person who made the false statement, or

(ii) a person who knew at the time he or she acquired an interest in the property that the statement was false and afterwards conveyed the interest,

to substitute other real property for the matrimonial home, or direct the person to set aside money or security to stand in place of it, subject to any conditions that the court considers appropriate.

Temporary or interim order

(2) The court may, on motion, make a temporary or interim order under clause (1) (a), (b), (c), (d) or (e).

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.

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.

[12] According to section 2 of the Partition Act, a joint owner of a property has a prima facie right to sell jointly owned property. In the case of Dhaliwal v. Dhaliwal, 2020 ONSC 3971, Pazaratz, J. at para. 16, after a comprehensive canvas of the jurisprudence, laid out the relevant principles applicable to a s. 2 motion. Those principles may be summarized as follows (citations omitted)

• Section 2 of the Partition Act empowers the court to order sale of jointly held property including the matrimonial home.
• A joint tenant has the prima facie right to an order for partition and sale held with another joint tenant.
• A court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made.
• The onus is on the party who opposes a sale to establish that there is a sufficient reason recognized in law, why the court should exercise its discretion to refuse a sale.
• Generally, the party opposing the sale must show malicious, vexatious or oppressive conduct relating to the partition and sale in order to avoid the sale.
• Each case must be decided on its own facts.
• The FLA does not displace the Partition Act, but in family cases a partition application should generally not be granted where it can be shown that a legitimate family law claim would be unfairly prejudiced.
• The court must consider the impact of a proposed sale on children or a vulnerable spouse including the emotional impact.
• Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course.
• Timing can be a relevant factor. This can be related to proximity of a trial, a child’s academic progress, or the seasonal real estate market.

(ii) Analysis

[13] To begin, the jurisprudence has consistently held that the court does not have the authority to grant a spouse the right to purchase the other’s interest in the matrimonial home or the right of refusal (Martin v. Martin). The parties may agree to such a disposition, but the court cannot order it.

[14] I am left to consider the opposing claims of the parties: the applicant’s claim for sale of the matrimonial home and the respondent’s for exclusive possession.

[15] On my reading of s. 24 of the FLA and s. 2 of the Partition Act, the claims are not necessarily mutually exclusive. For example, I can decline to order exclusive possession and also not grant an order for sale. I can also grant exclusive possession for a period of time (s. 24(1)(b)) after which I could presumably order sale.

[16] In the present case, I see no necessity for an order for exclusive possession. The applicant voluntarily left the home in July 2019 and has not returned, or threatened to return or even wanted to return since. In fact, on her evidence, she has no interest in keeping the home, wanting it sold or to be bought out.

[17] The respondent’s cross-motion was brought to oppose the applicant’s motion for sale. In the circumstances I conclude as Charney, J. did in Khan v. Khan, 2019 ONSC 4687, at para. 13 that the respondent’s motion in that case for exclusive possession “is really a motion that the home not be sold at all.” I therefore dismiss the claim.

[18] That conclusion, however, still begs the question of whether the home should be ordered sold in any event.

[19] The applicant argues that she as a joint tenant has a prima facie right to have the property sold, that the onus is on the respondent to show reason for not selling the home, and that he would not be prejudiced by the sale because on her numbers she is owed an equalization. If she is incorrect and she owes an equalization, then it can be effected through a transfer of credits from her pension. While she acknowledges that the children suffer from significant mental health issues, she says the evidence the respondent puts forward in support is insufficient to discharge his onus.

[20] The respondent counters the applicant’s argument by saying it is in the children’s best interests that the home not be sold. He states that although the children attend university away from home, they come home frequently on weekends. When not attending school, they live at home. He describes the children’s mental health issues as being anxiety related and serious. One of the children has been on suicide watch twice.

[21] He has tendered three notes from the children’s treating family doctor. The first is dated May 26, 2021 in which he opines that “the stability of the children would be significantly negatively affected by a potential move to a new house.” The second and third notes are dated April 12, 2023, with one pertaining to RW and the other MW. The tenor is the same in both letters. The doctor describes the children’s historic diagnoses and states that they continue to be symptomatic and that the home “represents a safe space to recover.” If the home were sold, he has “great concerns with a significant disruption” of the children’s safety plan.

[22] For the following reasons, I find that the respondent has not discharged his onus and I order the sale of the matrimonial home.

[23] But for the children’s issues, I would have no hesitation in ordering the sale. The respondent has been in the home for four years post separation. The parties have had time to work out their financial issues. A trial is 10 to 11 months from the date the parties set it down and they are a long way off from that point. I find that the respondent will not be prejudiced by a sale. There is plenty of equity in the home even at a conservative value of $675,000. On the basis of the only NFP Statement tendered, the applicant is owed an equalization payment approximately $64,000. The respondent claims a number of deductions related to inherited property. He bears the onus of proof. I am satisfied, however, that even if he is owed an equalization that that may be satisfied by a rollover of pension credits.

[24] The question then is reduced to what weight should be given to the children’s interests in prohibiting the sale. Both parties agree that the children have significant issues. Even the applicant in her affidavit stated that attending the children’s care prevented her from fully pursuing her career.

[25] While accepting the seriousness of the children’s condition, I am not satisfied that the evidence supports the view that the sale of the home itself would set the children back significantly.

[26] I have several difficulties with the doctor’s notes. First, they were attached as exhibits to the respondent’s affidavits. On their face they are hearsay. They are opinion evidence from what would be a participating expert but who has not been qualified as such. Attaching the notes would put him beyond cross-examination.

[27] The law on this point is best summarized by Nakonechny, J. in Lucreziano v. Lucreziano, 2021 ONSC 4106, at para. 49:

[49] Rule 14(19) allows for hearsay only in restricted conditions. The case law identifies potential issues with the admissibility of the doctors’ letters attached to a party’s affidavit. In some cases, courts have rejected unsworn doctor’s letters as inadmissible because the letters contained no evidence as to the doctor’s qualifications and there was no opportunity to cross-examine the doctor. While a doctor’s letter or report will not be excluded solely because it is not in the form of an Affidavit, the Court must be satisfied of the truth of the facts contained in the letter or report: Ceho v. Ceho, 2015 ONSC 5285, Kozak v. Kozak, 2018 ONSC 690.

[28] In Duggan v. Lakeridge Health Corporation, 2017 ONSC 7340, Edwards, J., in the context of a civil proceeding, at para. 30 determined that the “proper means by which any expert’s report should be placed before the court on an interlocutory motion, particularly a motion for summary judgment, is to require such report to be appended to an affidavit of the expert together with the expert’s curriculum vitae then ensuring that there has been compliance with Rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Nevertheless, Edwards, J. ultimately allowed such a report relying on Rule 1.04 of the Rules that requires the rules be liberally construed to ensure “just, most expeditious determination of every civil proceeding on its merits.”

[29] On a similar rationale based on r. 2(2) (deal with cases justly) and r. 2(3)(b) (saving expense and time) of the Family Law Rules, I would admit the notes but give them little weight. The first note is two years old and for that reason outdated. The notes are very brief, barely a paragraph in length. They are long on opinion and short on facts. They are to be contrasted to the psychologist’s report found in the case of Salomon v. Salomon. That report contained a far more comprehensive report outlining the psychologist’s assessment of the children, her diagnosis and prognosis which all formed the basis of her opinion that the sale of the home would be contrary to the children’s best interests.

[30] We know now that RW has completed three years of university and will be working away from home for the summer. MW has completed first year university having resided in residence with the intention of living off campus next year with friends. It is anticipated MW will be home for the summer. The evidence is that both children have done very well academically.

[31] The doctor has stated that while the children are still symptomatic, they have stabilized. Both children have cars so they can come home as they wish. While this was described as frequently, it was unclear how frequent and did not appear to be every weekend.

[32] The respondent made reference to the one child’s two suicide watches, with no particulars provided. I do not know when those events occurred or the circumstances. The doctor’s note regarding MW does refer to a recent hospitalization “due to anxiety related symptoms with negative thoughts.” No other details were provided.

[33] The children have already left home and shown they can manage living away from the home. They have done well at school. There is no evidence that there is anything intrinsic to their home that would provide them with any greater comfort than any other accommodation that the respondent would acquire. There is no indication that he would not be able to provide them with accommodation. While they would love the comfort of being in the home they have known, they will still have their cars, be able to return home as always and with the knowledge that the respondent will ensure that it continues to be a “safe” place for them.

[34] For these reasons I order sale of the matrimonial home, with it being listed for sale no later than July 1, 2023.

Advance Payment

[35] The applicant requests an advance of $40,000 from the net proceeds from the sale of the matrimonial home. She says she needs these funds to pay for a critique of the respondent’s book of business and ongoing legal fees. The funds can be seen as an advance of an equalization payment, credit against retroactive spousal support owing by the respondent, or an advance from her share of the net sale proceeds from the matrimonial home.

[36] Rule 24(18) of the Family Law Rules provides that the court may order a party to pay an amount of money to another party to cover part or all of the expenses of carrying on a case, including legal fees.

[37] In Stuart v. Stuart, Rogers, J. applied the following principles to the exercise of discretion pursuant to r. 24(18) (see also: Beasley v. Beasley, 2019 ONSC 1562, r. 24(12)), starting at para. 8:

• The court’s consideration must adhere to the primary objective of the Family Law Rules, that is, to deal with cases justly (r. 2(2) and r. 2(3)).
• The exercise of discretion is on a less stringent basis that in cases that call for discretion only in exceptional cases. “The discretion should be exercised to ensure all parties can equally provide or test disclosure, make or consider offers or possibly go to trial. Simply described, the award should be made to level the playing field” (at. Para. 9).
• Such an order should not immunize a party from costs and is not a license to litigate.
• Proof of the necessity of interim disbursements is critical. The claimant must demonstrate the disbursements are necessary and reasonable.
• The claimant must establish that he or she is incapable of funding the required amounts.
• The claims being advanced must be meritorious.
• The order should not be limited to cases where it should be taken out of an equalization payment.

[38] Applying these principles to the present case, I find that the applicant’s request is appropriate in order “to level the playing field.” While a specific quote from an expert was not provided, I find the amount not unreasonable given that the respondent has obtained an expert’s report and that it is reasonable to expect the applicant to retain an expert to critique the respondent’s valuation. I also note that this litigation has been protracted with no immediate end in sight with all the attendant legal costs. Finally, I find that the applicant is unable to fund these necessary disbursements from her existing financial resources. The respondent is in a far superior position on the basis of income alone.

[39] Therefore, I order that the applicant shall receive an advance of $40,000 from the net sale proceeds from the matrimonial home. This shall be as either an advance of an equalization payment, credit against retroactive spousal support, or an advance from her share of the net sale proceeds from the matrimonial home.

[40] Upon sale of the matrimonial home, therefore, I order that the proceeds shall be distributed as follows:

(i) To real estate commission;

(ii) To adjustments for taxes, municipal fees or levies;

(iii) To any registered encumbrances secured prior to separation or jointly thereafter;

(iv) To legal fees and disbursements pertaining to the sale;

(v) To any outstanding utility bills owed by the respondent and deducted from his one half share of the net sale proceedings;

(vi) To all other sale adjustments; and

(vii) To the applicant, $40,000 as an advance on interim disbursements.

[41] The balance shall be held in trust pending further court order or agreement.

Child Support

[42] The respondent seeks child support for the two children who are attending university away from home but otherwise maintaining residence with him.

[43] As the children are over the age of majority, s. 3(2) of the Federal Child Support Guidelines, SOR/97-175, (“CSG”), applies:

Child the age of majority or over

3(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

[44] The respondent argues child support should be based on s. 3(2)(a), that is, calculated in accordance with the appropriate table amount. The applicant, on the other hand, says this approach does not account for the fact the children are away at school for eight months of the year. Alternatively, she proposes paying child support only for the four months the children are at home for the summer.

[45] The challenge I am facing on this issue is lack of evidence. I know nothing about the children’s post-secondary school expenses, any bursaries, scholarships, RESP’s, student loans or the children’s financial circumstances.

[46] This is critical information because if I agree with the respondent and order table support, the applicant would be expected to contribute to the children’s post-secondary expenses under s. 7. If I accept the applicant’s argument and order “summer” support, she would still be expected to contribute to a share of the post-secondary school expenses.

[47] In Lewi v. Lewi, the Court of Appeal addressed the issue of child support for children over the age of majority attending at a post-secondary institution. Starting at para. 127, Juriansz, J. writing for the majority, provided this analysis of s. 3(2) of the CSG:

[127] Section 3(2) provides two ways of determining the amount of child support for a child of majority age. Under s. 3(2)(a), the amount of support for a child over the age of majority is calculated in exactly the same way as that for a minor child. The opening [page354] words of s. 3(2)(b) indicate that the amount determined by applying s. 3(2)(a) is the presumptive amount. Section 3(2)(a), by adopting the same approach for children of majority age that applies to minor children, fosters predictability, consistency and efficiency in the resolution of disputes concerning the amount of support for children of majority age.

[128] Section 3(2)(b) only comes into play "if the court considers that approach to be inappropriate". It is apparent that the word "approach" was chosen with care, as the word "amount" is used six times in the section. In this way, s. 3(2)(b) differs from s. 4, which provides the court with discretion to depart from the "amount" determined under s. 3 where it considers that amount to be inappropriate. The words "that approach" refer to the technique dictated by s. 3(2)(a) -- namely applying the Guidelines "as if the child were under the age of majority". I will refer to that technique as the "standard Guidelines approach". Before resorting to its discretion under s. 3(2)(b), the court must conclude that it is inappropriate to apply the Guidelines as if the child who is actually of majority age were a minor.

[129] The word "approach" makes it clear that the court cannot depart from the application of the Guidelines simply because it considers the "amount" determined under s. 3(2)(a), i.e., the table amount or additional expenses under s. 7, to be inappropriate. It must be satisfied that the standard Guidelines approach is inappropriate; clearly an exceptional situation rather than the rule. This further promotes predictability, consistency and efficiency in family law litigation.

[48] The Court of Appeal’s analysis places the onus of showing a Table approach is inappropriate on the applicant. With some justification, she protests that she was unable to discharge that onus because the respondent directly or indirectly has all the requisite information. Indeed, the respondent did not provide any particulars to support a s. 3(2)(b) analysis in the alternative.

[49] Juriansz, J. observed that both s. 7 expenses and s. 3(2)(b) require the courts to consider whether a child of majority age is able to make a contribution to his or her post-secondary expenses (at para. 141). The majority concluded that the more appropriate approach when determining child support in the situation of a child attending post-secondary education away from home is s. 3(2)(b).

[50] The applicant has an obligation to pay child support. Unfortunately, in the absence of the necessary evidence, I am left with ordering child support in the Table amount. The applicant’s T4 of 2022 discloses an income of $57,862.04 less union dues of $796.80 for a net income of $57,065.24. Based on the CSG Tables, child support at this income is $870 per month. I order therefore that, commencing May 1, 2023, the applicant shall pay support in the amount of $870 per month. In view of the lack of evidence, I make no order pursuant to s. 7. I make this order without prejudice to the applicant claiming that she has overpaid relative to what her obligation would have been had a s. 3(2)(b) analysis been applied. To the extent there is an overpayment this would be credited against the retroactive child support the applicant owes.

Spousal Support

[51] The applicant seeks spousal support. The respondent concedes the applicant’s entitlement and in fact has paid monthly spousal support in the amount of $2,750 since about separation. In addition, he has paid the mortgage, insurance and taxes on the jointly owned home.

[52] As I have found the applicant owes Table child support this considerably alters the Spousal Support Advisory Guidelines, (“SSAG”) calculation provided by the respondent. Instead, I will rely on the SSAG calculation tendered by the respondent. His calculations are based on the parties’ 2022 income tax information:

Respondent’s income: $367,075 – employment Plus $20,835 – net partnership income Less $ 25,000 – (estimated) Schedule III employment deductions Net $362,910

Applicant’s income: $57,066 – net of union dues

[53] Based on these figures and factoring in the applicant’s child support obligation of $870 per month, the SSAG calculations are:

$2,765 – low $3,226 – mid $3,686 – high

[54] I find that the spousal award should reflect the high end of the range. The high end would account for a compensatory element to which the applicant would be entitled. In arriving at this conclusion, I have considered the long marriage, the relative career trajectories of the parties, and the unequal assumption of childcare responsibilities assumed by the applicant.

[55] Therefore, I order that commencing May 1, 2023, the respondent shall pay support for the applicant in the amount of $3,686 per month. The respondent shall continue to pay the mortgage, insurance and taxes associated with the matrimonial home until it is sold. This is without prejudice to the respondent claiming a credit for payment of the applicant’s share of those expenses in the final accounting.

[56] If the parties are unable to agree on costs, the applicant shall serve and file written submissions within 15 days and the respondent shall have 15 days thereafter to respond. Submissions shall not exceed five pages not including bills of costs and offers to settle.

“Justice Paul J. Henderson” Justice Paul J. Henderson Date: May 24, 2023