Court File and Parties

COURT FILE NO.: FS-21-00027212 DATE: 2023-05-26 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Tracey Doyle, Applicant (Responding Party) AND: William Adrian De Sousa, Respondent (Moving Party)

BEFORE: Kristjanson, J.

COUNSEL: Adriana Chimirel, Alyssa Waris, Counsel for the Applicant Audrey Lee, Counsel for the Respondent

HEARD: At Toronto by videoconference February 2, 2023

Kristjanson, J.

Endorsement

[1] This is a motion by the respondent father for partition and sale of a jointly owned home pursuant to the Partition Act, RSO 1990, c. P.4, and for occupation rent. The parties have been divorced since 2015, and the property is not a matrimonial home. The applicant mother makes an unjust enrichment claim, arguing that the father should not be allowed to share in the increase in the value of the home post-separation as she has paid the carrying costs of the home and renovations which increased the value of the home. She also argues that the sale of the home is an issue that must go to trial because of the unjust enrichment claim, for which a proprietary remedy is sought.

[2] What is notable about this case is the delay: the home has been solely occupied by the applicant mother and the children since January 2014. The other notable aspect is that the mother now seeks to appropriate to herself the entire growth in value of the home since separation, even though the home is jointly owned.

[3] The parties separated in January 2014, and were divorced in 2015, based on the applicant’s simple divorce application. There was no claim at that time for spousal support, child support or equalization. There are two children; the eldest is now 22 and has graduated from university, and the youngest is 17.

[4] The parties discussed sale of the home for too many years. The father finally started a civil proceeding for partition and sale in October 2020. The mother brought a family law application in 2021. The Partition Act application was consolidated with the family proceeding in April 2022. There are no claims for equalization of the family property.

[5] The home has skyrocketed in value since separation. It has been valued at between $2.2 and $2.85 million. There is a mortgage of $323,000 for which both parties are liable, a home-equity line of credit which is a joint debt of $367,000, and property tax arrears. The equity in the home is likely over $1.5 million.

[6] There are four main issues:

(1) Should there be an order for sale of the home, or is this an issue that should proceed to trial? (2) Should the father share in the increase in value of the home post-separation, or would this constitute unjust enrichment as argued by the mother? Is unjust enrichment an issue that should proceed to trial, and is it a reason not to order the sale? (3) If there is an order for sale of the home, should the proceeds be released in whole or in part? (4) Is the father entitled to occupation rent? If so, from what time, and for how much? Or is this an issue that should proceed to trial?

Sale of the Home

[7] The parties separated in January 2014. Nine and a half years later, the father seeks an order for partition and sale of the jointly owned home. No equalization was sought by either party after separation. In January 2020 the joint tenancy was severed, and the parties now own as tenants in common.

[8] The joint owner of a property has a prima facie right to partition and sale pursuant to section 2 of the Partition Act. Unless the party opposing the sale can demonstrate that there is malicious, vexatious, or oppressive conduct on the part of the moving party in relation to the sale, the court’s discretion should be exercised in favour of the moving party requiring the sale of the property: Marchese v. Marchese, 2019 ONCA 116 at para. 5. No evidence suggests that the respondent father is acting oppressively, maliciously, or vexatiously asking to list the jointly owned home for sale after 9.5 years.

[9] The trend in the case law favours ordering sale before trial. As Shaw J stated in Delgonte v Delgonte, 2019 ONSC 6954 at para. 39, “An order for the sale of the matrimonial home is relief that is routinely sought in matrimonial litigation. It is not uncommon the parties wish to access the equity in the matrimonial home for a variety of reasons such as purchasing other property or paying debt.”

[10] The father has been seeking the mother’s cooperation in the sale of the home for several years.

• In November 2014, the mother proposed that the house would be sold and the proceeds of sale after commissions, fees and debts would be divided, subject to her being reimbursed for half the value of the expenses to the date of sale, and projecting her carrying the house for six months.
• The father responded to the mother’s in November 2014 saying he would agree to the terms of the statement provided on division of assets, “but you do need to set a date as well, on how long I will be paying for the house, as I am not claiming cost for not living there or taking any benefit for my contributions since I left the house.”
• In August 2015, the father wrote to the mother stating that she should accept his help “in order to get the house listed.” He stated that “the mortgage comes up for renewal on October 15, 2015, I would like the house listed not renew the mortgage as we are carrying close to $700,000 in debt.” The father refused to renew the mortgage.
• In an email from the father to the mother sent in October 2015, the father states that he is going to sign the separation agreement prepared by the mother, and “I am looking at putting in the listing date so we have something to work towards as well (around May 1, 2016).” No separation agreement was signed.
• In April 2018, the mother wrote to the father following a significant incident causing water damage to the home, stating; “I was two weeks away from finishing the house and listing.” But five years later, that excuse doesn’t hold.
• In January 2019 the mother stated in an email to the father” “you have been pushing me to sell from the beginning regardless of the kids. I had to have so many discussions with you about their welfare and dealt with your frequent temper tantrums over the house issues...”
• In November 2019 the father wrote asking the mother to arrange for a listing agent to come by the house. He stated “this time last year and the year before you use the children’s birthday and Christmas as the reason. Then you said spring market, and six years later you haven’t moved on the sale of the house. Why are you stalling and not allowing me to have my share of the house.”
• In October 2020, the mother wrote to the father stating; “I won’t sell right now. Take me to court.”

[11] The mother has not agreed to sell: the parties are in court. The mother has sought to buy out the father’s interest over the years, but a joint owner cannot compel the other owner to sell. Joint property owners have the right to test the sale price on the market.

[12] Without access to his share of the equity in the family home, since separation the father has struggled financially to make ends meet. This has been exacerbated by periods of unemployment, the negative impact of the COVID-19 pandemic on his employment and income, as well as health. Given his current financial situation, and the joint debts of the parties, he cannot finance the purchase of a new home for himself.

[13] The mother is also in dire straits. Her financial statement shows income of $8,508, but expenses of $82,157, as well as debts of $535,340. She has borrowed from her own mother to keep afloat.

[14] On the evidence before me the sale of the home is inevitable. Both parties have very large debts. They are in arrears on property tax. The father needs the money now. I see no reason why the mother should indefinitely delay the sale of the home, notwithstanding claims for unjust enrichment.

[15] The mother argues that ordering the sale would affect the ability of the applicant to buy out the father’s interest. While the applicant claims prejudice in that she intends to buy out the respondent’s interest, there is no right to buy out the interest of a joint property owner.

[16] The mother argues prejudice to her claims for child support arrears and post-separation adjustments. The father proposes a holdback of $600,000, to cover all claims. I find no prejudice to the mother’s claims considering the large holdback.

[17] The applicant also argues that the sale of the property would create undue hardship amounting to oppression on the applicant. She states she cannot afford to remain near the youngest child’s school and doctors. While claiming special medical needs, the mother filed no expert medical reports or affidavits. And she has provided no evidence of her search for alternative accommodations. But in any event, the youngest is almost 18 years old. The house must be sold, and the mother must secure alternative accommodation, as she should have done years ago.

[18] As the joint owner, the father is prima facie entitled to the partition and sale. The burden is on the mother to establish that the moving party’s conduct related to the sale is malicious, vexatious, or oppressive. She has not met that burden. I therefore order the sale of the home, with the terms of the sale set out in the order.

Unjust Enrichment and the Increased Value of the Home

[19] The applicant mother argues that since she has paid the carrying costs of the property, and undertook renovations which she states have increased the equity in the property by about $1,060,749, it would be oppressive to now order a sale. Rather, she seeks to appropriate to herself the growth of the value of the home since separation on the grounds of unjust enrichment. She seeks a proprietary claim in the house itself and argues that this is a triable issue, meaning that the question of partition and sale should not be decided on this motion.

[20] In Kerr v Baranow, 2011 SCC 10, [2011] 1 SCR 269, the court held that the three elements that must be satisfied for a claim of unjust enrichment to be successful are: (a) an enrichment of or benefit to the defendant; (b) a corresponding deprivation of the plaintiff; and (c) the absence of a juristic reason for the enrichment. A successful unjust enrichment claim may result in the imposition of a remedial constructive trust providing the applicant with a proprietary interest in the subject property. The mother argues that her unjust enrichment claim is a triable issue, and since it may be proprietary, it should be reserved for trial.

[21] Here, provided that the father pays his share of the expenses of carrying the property, there is no unjust enrichment. The parties jointly made an investment in real property. They started a renovation, finished in part by the mother. But the bulk of the appreciation is because of the increase in prices for real estate in Toronto in the last decade.

[22] Once the father contributes to the mortgage, property tax and home insurance, he is equally entitled to share the increase in the value of their mutual investment.

[23] The mother argues in part that some of her unsolicited renovations or improvements to the house should constitute unjust enrichment disentitling the father to share in the growth of value of the house. I do not agree.

[24] The Ontario Court of Appeal has held that the common law does not compensate a party on the sole basis that her actions benefited another, as is essentially argued by the mother. A party cannot unilaterally create obligations and then seek to enforce repayment. Bilaterality is essential to the common law claim. As recently summarized by the Nova Scotia Court of Appeal in Fancy v Coade Estate, 2022 NSCA 17 at paras. 65-70:

[65] In Campbell v. Campbell, [1999] O.J. No. 970 (Ont. C.A.), the Ontario Court of Appeal discussed the legal and evidentiary requirements when considering a claim for unjust enrichment.

[66] In Campbell, two sons brought a claim against their elderly mother arising out of the operation of the family farm. In 1988, the sons decided it was necessary to modernize the farm operations to enable it to remain economically viable. These modifications included the construction of a new barn, renovations to an existing barn and the purchase and installation of milking and manure removal equipment. The cost of the improvements was approximately $220,000, the largest portion of which was spent to construct the new barn.

[67] At trial, it was found that the mother had been unjustly enriched by the improvements and damages were awarded to the sons.

[68] The Ontario Court of Appeal, in overturning the trial judge, undertook a review of the law of unjust enrichment and noted that the common law does not compensate a plaintiff on the sole basis that his actions have benefited another:

The common law has never been willing to compensate a plaintiff on the sole basis that his actions have benefited another. Lord Halsbury L.C. scotched this heresy in the case of Ruabon S.S. Co. Ltd. v. London Assurance, [1900] A.C. 6 with these words (p. 10): “.. . I cannot understand how it can be asserted that it is part of the common law that where one person gets some advantage from the act of another a right of contribution towards the expense from that act arises on behalf of the person who has done it”. Lord Macnaughten, in the same case, put it this way (p. 15): “.. . there is no principle of law which requires that a person should contribute to an outlay merely because he has derived a benefit from it”. It is not enough for the Court simply to determine that one spouse has benefited at the hands of another and then to require restitution. It must, in addition, be evident that the retention of the benefit would be "unjust" in the circumstances of the case.

[70] The court ultimately concluded the improvements to the farm fell outside the law of unjust enrichment. To hold otherwise would be to allow a plaintiff the privilege of unilaterally determining another’s obligation:

The law of unjust enrichment thus construes the absence of donative intent not unilaterally, as a subjective matter taking place in the plaintiff's head, but rather bilaterally, as an inter-subjective matter taking place between plaintiff and defendant. Forcing the defendant to disgorge the benefit received in the absence of this bilaterality would amount to granting the plaintiff the privilege of unilaterally constituting another's obligation.

Unrequested benefits fall outside the law of unjust enrichment in that, having failed to display the required bilaterality, their disgorgement would itself be unjust.

[Original emphasis]

(See also Simonin v. Simonin, 2010 ONCA 900, at ¶23, 24.)

[25] The father did not agree to forgo his share of the joint interest, and any alleged improvements were done unilaterally. It would be unjust to require the father to forgo his legal entitlement because of unrequested benefits falling outside the law of unjust enrichment.

[26] The applicant seeks a contribution to the expenses, and is entitled to contribution in respect of mortgage, property tax and property insurance. The father has also agreed to pay his share of the receipted post-separation improvements to the house. But I do not accept that the applicant had any basis to reasonably expect that she alone could enjoy the increase in value of the home. The co-ownership of the house is the reason the respondent is entitled to the growth in value of the jointly-owned homed after the date of separation, until it is sold.

[27] The applicant mother did whatever renovation work she undertook at a time when the father as a joint tenant was entitled to an undivided half-interest in the house. Essentially, she argues that his half-interest should be transferred to her given her contributions to the property, even though any work was done with full knowledge that he was the joint owner. She too benefited from the work. There was certainly no expectation that she would get more than her 50% ownership interest in the property. At no time since she initially proposed the equal property separation in 2014 did she tell the father she intended to appropriate to herself the increase in value of the home. And by delaying the sale, she has unilaterally created a lengthy period during which the home significantly appreciated due to market price increases.

[28] I find that the mother has not established on a prime facie basis that she would succeed on her unjust enrichment claim. As a result, the house should be sold.

[29] As to the value of the claim, the only evidence relied on as a real estate broker’s letter of opinion from October 2021, which notes an average increase in the area of 263% for homes between 2005 (their date of purchase), and the present. The broker attributes up to $500,000 of the price increase to the extension/renovations. But the bulk of the renovations (addition of the extension) were done during cohabitation. The father states that the large renovation was completed in 2006. The letter of opinion does not distinguish between pre-and post-separation renovations. And it is simply a letter from a real estate broker appended to the mother’s affidavit.

[30] If I am wrong on the unjust enrichment claim, then I am further satisfied that no prejudice results to the mother on the sale of the home. A portion of the sale proceeds - $600,000 – is to be held in trust pending any agreement, or further court order. Should the mother succeed in her claim at trial for a remedy for unjust enrichment, the court can make a monetary award in relation to any post-separation increase in value.

Occupation Rent

[31] The father seeks occupation rent since date of separation. Occupation rent is an attribute of the joint ownership of property. At common law, all joint tenants have an equal right to occupation of the whole, and neither has the right to exclude the other. At common law, there are two main bases for awarding occupation rent. The first is unjust enrichment on the grounds of ouster or occupation without payment. The second is when the joint tenant in occupation request reimbursement for expenses as part of the partition or sale.

Occupation Without Payment: Unjust Enrichment

[32] One basis for awarding occupation rent is as an equitable remedy for unjust enrichment where those entitled to the property are not in occupation, whether by ouster or when a co-tenant is in occupation without payment. It must be shown that the party in possession of the premises has been enriched, there has been a corresponding deprivation to the others entitled to the property, and an absence of a juristic reason for the enrichment.

[33] In Bluestone v. Dagarsho Holdings Ltd., (2004) 23 R.P.R. (4th) 80, aff’d (2005) 37 R.P.R. (4th) 53 (Ont. CA), Justice Karakatsanis stated at paragraph 26:

Occupation rent is an equitable remedy. The often cited general principle of occupation rent is that “if a person is in occupation without a lease, although the relationship of landlord and tenant will not exist, the law will imply a contract for payment to the landlord or a reasonable amount for the use and occupation of his land:” Young v Bank of Nova Scotia (1915), 34 O.L.R. 176, 23 D.L.R. 854 (Ont. C.A.). The principle is based upon the presumption that the parties have agreed to reasonable compensation. That presumption can be rebutted by evidence that the parties intended that the occupation be without compensation. Occupation rent is also an appropriate measure of damages for trespass and unjust enrichment...

[34] The applicant has been enriched as she occupied the home for 9.5 years, when she admittedly paid the mortgage and other costs. But, as discussed below, she now seeks reimbursement for carrying costs of the home, which is another ground for payment of occupancy rent.

[35] The carrying costs, on the evidence available, are less than the rent that would be otherwise payable in respect of comparable properties in the area. I am of the view that the father has been deprived of the occupancy (use) and rental income that might have been available, because of the applicant’s occupancy of the property. There is no juristic reason for that enrichment. As to the evidence of the amount payable for occupation rent, in my view there is sufficient reliable evidence upon which a determination can be made as to the appropriate amount payable for interim occupation rent as discussed below.

Occupation Rent and Claim for Reimbursement on Sale

[36] The second basis for an award of occupation rent is when, on an application for partition or sale, the party in possession makes a claim for reimbursement of the payment of current expenses. That is exactly what has happened here. If the occupying co-tenant claims recovery of money spent on improvements, taxes, mortgage and similar expenses, he or she must submit to paying occupancy rent. As set out in Kazmierczak v. Kazmierczak, (2001), 292 A.R. 233 (QB), 2001 ABQB 610, aff’d (2003), 2003 ABCA 227, 17 Alta. L.R. (4th) 205, CA, at para. 88:

[88] The concept of “occupation rent” is a common-law attribute of the joint ownership of property. At common law, all joint tenants have an equal right to the occupation of the whole of the premises, and neither had the right to exclude the other. In limited circumstances the Courts would recognize a right to occupation rent in favour of the joint tenant who was out of possession. In his book Principles of Property Law (Scarborough: Carswell, 1993) Professor B. Ziff summarizes the law with respect to occupation rent at p. 266:

These rules require elaboration. Given that all co-tenants are inherently entitled to possession of each and every part of the property, no matter the size of their individual shares, one co-owner cannot exclude or “oust” another (say, by changing the locks). Not only is this direct action unlawful, but also where the conduct of one co-owner is so egregious that one would not expect the other party to remain, this amounts to a constructive ouster. If a party is locked out or forced to leave by the expulsive conduct of the other, the remaining owner may be charged with an occupation rent. No occupation rent is normally payable simply because one owner has enjoyed exclusive possession. However, where, on partition, the party in possession makes a claim for reimbursement for the payment of current expenses, a counterclaim for occupation rent may be entertained. The amount of rent ordered is often based on an estimation of the market value of property (divided by the number of co-owners), but sometimes it is pegged at the cost of current expenses. (footnotes omitted, emphasis added)

[37] At para. 91, the court also affirmed principles set out by the Ontario Court of Appeal:

In Mastron v. Cotton, [1925] 58 O.L.R. 251 (App. Div.) the Court identified the following principles regarding claims for occupation rent:

1. If the tenant in occupation asks the other tenant to contribute to upkeep and repairs, the occupying tenant must submit to an allowance for use and occupation of the premises.
2. If the tenant in occupation has made improvements or repairs which have increased the value of the property, the other tenant cannot benefit from the increase in value without submitting to an allowance for the improvement and repairs.
3. Where one tenant has paid more than his or her share of encumbrances on the property, that tenant is entitled to an allowance for such surplus.

In Mastron it was held that the wife, who was in occupation of a jointly-owned matrimonial home, could only ask her husband for contribution toward payments made on mortgages, taxes and repairs if she submitted to being charged for use and occupation. The rule that occupation rent is to be awarded only by way of counterclaim against claims for contribution to expenses has been followed in subsequent cases…

[38] I accept the principles as summarized by Price J. in Faria v Bush, 2018 ONSC 7288 at paras. 36-38 (internal citations omitted):

[36] Where a tenant in common who is in exclusive possession of the property claims for expenses such as mortgage interest, taxes, and repairs, he/she will not be allowed reimbursement for such expenses unless he submits to be charged with occupation rent.

[37] Even if no such claim is made by the tenant in occupation, the non-occupying joint tenant may claim occupation rent provided that he/she is prepared to suffer an allowance to the joint tenant in occupation for repairs, improvements, maintenance, and carrying charges.

[38] Even where occupation rent is not available because the tenant in occupation has not claimed for upkeep and repairs, the court may still order compensation to the non-occupying tenant where it is equitable to do so.

[39] The applicant mother seeks repayment of the carrying costs of the home including mortgage, property taxes and insurance, since separation, which the father is prepared to pay. She also claims utilities and usage-based costs such as solid waste fees: those are costs of occupation, for which the father is not liable. The father agrees to pay his share of the receipted renovations of $42,050.90.

Value and Timing of Occupation Rent

[40] The value of occupation rent is usually set at 50% of the rent that could have been earned had neither spouse lived in the house: Khan v. Khan, 2015 ONSC 6780, paragraph 11. I accept the evidence of certified real estate appraiser Jim Parthenis. Mr. Parthenis prepared an appraisal report in June 2022 estimating the value of the house at $2,850,000 and establishing the rental values from 2014 to 2022. I apply those rental values in my decision on occupation rent.

[41] The decision to award occupation rent is discretionary. I find that shortly after separation in 2014, the mother proposed to divide assets including by selling the house and dividing the proceeds of sale. The father has been desperately requesting the sale of the home ever since, and made his precarious financial position known to the mother. At the same time, the mother carried the house, without asking for contribution, for more than 9 years, and provided a home for the children. The father has paid some child support, on a voluntary basis, and is now paying child support by order. There is a dispute over the father’s income, and whether he has paid adequate child support.

[42] The delay in commencing the court proceeding gives me pause. Had the mother been aware that the father was seeking occupation rent, she could have modified her behaviour and agreed to sell the home. He took no legal steps until October 2020, when he finally started his application for partition and sale. That is the date which I select for the commencement of occupation rent. I know that since the mother (the tenant in occupation) is seeking reimbursement for all carrying charges since separation, the father has grounds to claim occupation rent for the same period. But since there was no notice of the intention to compel the sale until October 2020, I commence the occupation rent when effective notice was given. Had the mother agreed to the sale in October 2020, I would not have awarded occupation rent.

[43] At the same time, the exercise of my discretion to restrict occupation rent to the time after the application of partition and sale is inextricably bound up with my decision to restrict the father’s repayment to the post-separation carrying costs described below, and the receipted invoices presented on the motion. This is just to both parties.

[44] The mother is liable to pay occupation rent to the father of $95,589.00 (2020: 2 months at $3063.50; 2021, 12 months at $3,063.50; 2022, 12 months at $3,100; 2023, 5 months at $3,100,), plus prejudgment interest, pursuant to section 122(2) of the Courts of Justice Act. There is a continuing order that the mother pay the father occupation rent of $3,100.00 per month until the delivery of vacant possession on sale of the home.

[45] The respondent is to pay the applicant his share of the post-separation carrying costs of the home from date of separation comprised of 50% of the mortgage, 50% of the property tax, and 50% of house insurance. The father is also to pay 50% of the receipted renovation expenses of $42,050.90, as agreed. The mother is to provide her calculations within seven days, and the father has seven days to reply. They may return to me by no later than 21 days for an order setting the amount owed as carrying costs, such costs to be paid out of the proceeds of sale of the home.

[46] The applicant mother states that the father has refused to sign two sets of mortgage renewals, causing the monthly payments to increase. The respondent refused to sign the renewals because he wished the house to be sold. The higher mortgage cost is not an adjustment to be solely allocated to his side of the ledger, but to be split evenly.

[47] The parties started a renovation project before separation. The applicant has provided evidence of invoices around $42,050.90 spent on renovations and repairs to the property since separation. The respondent father has said that he is content to share that expense.

Other

[48] Justice Sharma directed the hearing of the long motion on September 13, 2022. The long motion was adjourned on consent to September 22, 2022. All the respondent’s materials were properly filed on that motion. The applicant filed no materials. Indeed, according to the respondent’s confirmation of motion, as of January 26, 2023, the respondent had not received a factum or affidavit responding to the September motion.

[49] The matter was not reached on September 22nd, 2022, as no judges were available to hear the long motion. The parties agreed to the date of February 2, 2023. It was marked as a priority long motion. The respondent confirmed the motion on January 26. After the confirmation was served, the mother served a Notice of Motion, factum and affidavit.

[50] I am concerned that the mother seeks significantly new relief that she did not raise at the time the long motion was scheduled for hearing, in September 2022, including disclosure and interim disbursements. On April 22, 2022, Justice Sharma granted leave to the parties to bring all motions related to the property. The mother’s motion was not case conferenced, and leave was not granted. I am concerned with the primary objective of the Family Law Rules, which dissuades this kind of litigation by ambush and flouting of court-ordered deadlines. I consider the relevant issues raised by the mother only in the context of the father’s motion.

Costs

[51] The father has been successful on this motion and is presumptively entitled to costs. The father shall provide costs submissions limited to six pages (double spaced, 12-point font) plus Offers to Settle plus Bill of Costs, within 10 days. The mother shall provide responding submissions subject to the same limits, within 10 days of receiving the father’s submissions. The father shall file a brief reply, if necessary, of three pages, within a further 5 days. All submissions are to be sent through the Family Portal to my attention.

Order

[52] I make the following Order.

THIS COURT ORDERS THAT:

1. The jointly owned home (the “Family Home”), is ordered to be sold pursuant to sections 2 and 3(1) of the Partition Act.
2. The terms and conditions of the sale of the Family Home are that: (a) The parties shall jointly retain a real estate agent to list the Family Home for sale within seven days. If the parties cannot agree on a real estate agent within four days, the Applicant must provide the Respondent with a list of three real estate agents on the sixth day by noon, and the Respondent must select one real estate agent from the list by noon on the seventh day; (b) Realtor fees and commissions shall not be greater than 5% under the Listing Agreement; (c) The Family Home must be listed for sale within 21 days after the agent is retained; (d) The parties must agree on a real estate lawyer to conduct the sale transaction within 21 days. If the parties cannot agree on a real estate lawyer within fifteen days, the Applicant must provide the Respondent with a list of three lawyers by day 17 and the Respondent must select one lawyer from the list by day 19; (e) The parties must follow the reasonable advice and recommendations of the listing agent on the listing price, as well as all other issues in relation to the listing agreement, review of offers received, counteroffers, and acceptance of offers to sell the property; (f) The parties must accept the first reasonable offer to purchase the home. If they cannot agree on whether an offer is reasonable, any offer that is within three percent (3%) of the list price shall be deemed reasonable. An offer from a bona fide purchaser that is within three percent (3%) of the list price must be accepted unless both parties agree in writing to decline the offer or provide a counteroffer. (g) The closing of the Family Home shall not be later than 90 days under the Agreement of Purchase and Sale, subject to further court order or written agreement between the parties; (h) Each party must use best efforts to facilitate the sale of the Family Home; (i) The Applicant must provide a key to the Family Home to the Respondent or the real estate agent; (j) The Applicant must provide access to the Family Home to the real estate agent between the hours of 9:00 a.m. and 9:00 p.m. every day for the purpose of an inspection and to take measurements as well for open houses and showing the home to prospective purchasers or real estate agents; (k) The Applicant must ensure that the Family Home, both inside and outside, is kept in a reasonable state of good order, including in a clean, tidy and organized condition. Only the potential purchasers and the realtor(s) shall be present in the Family Home during showings. (l) In providing vacant possession of the property on closing, the parties must comply with all terms of the Agreement of Purchase and Sale, and specifically the terms relating to the fixtures and chattels to remain in and on the property after its sale. (m) Each party must execute any document, and do all things, reasonably required from time to time to give effect to the sale of the Family Home; (n) The real estate lawyer acting on the sale of the Family Home must pay the following from the sale proceeds: (i) Real estate commissions; (ii) Adjustments for taxes, utilities, municipal fees or levies; (iii) Amounts required to discharge registered encumbrances; (iv) Legal fees and disbursements relating to the sale, and (v) All other sale adjustments. (o) From the net proceeds, before distribution between the parties, the sum of $600,000.00 must be held in trust, in the trust account of the real estate lawyer retained regarding the sale of the property, until further written agreement of the parties or court order. This is without prejudice to either party’s claims with respect to how these funds are to be divided between the parties; (p) After paying the sums in paragraph (n) above and deducting the $600,000 for the holdback as stated in paragraph (o) above, the remaining proceeds must be divided into two equal shares and distributed equally to the Applicant and the Respondent; (q) If there are any unsatisfied writs of execution against either party, the amount required to be paid out to any judgment debtor must be paid out exclusively from that portion of the net sale proceeds that would have otherwise been paid to the party against whom the writ of execution is registered according to paragraph (p) above; (r) Any utility adjustments are the responsibility of the Applicant, to be met from her share of the proceeds.
3. If the parties cannot agree on any other term(s) of the listing, the execution of any documents, the showing of the property or any other matter in connection with the sale or closing of the Family Home, or if a party fails to comply with the terms of this Order, either party may seek an attendance with Justice Kristjanson, to determine the dispute, to be arranged with the judicial assistant.
4. The Applicant is to pay to the Respondent occupation rent of $95,589.00, comprised of the following: (2020: 2 months at $3063.50; 2021, 12 months at $3,063.50; 2022 12 months at $3,100; 2023, January to May at $3,100), plus prejudgment interest on the same, pursuant to section 122(2) of the Courts of Justice Act.
5. The Applicant is to pay to the Respondent occupation rent of $3,100.00 per month on the first day of the month commencing June 1, 2023, until the date of delivery of vacant possession on sale of the home.
6. The Respondent is to pay the Applicant his share of the post-separation carrying costs of the home from date of separation comprised of 50% of the mortgage, 50% of the property tax, and 50% of house insurance. The Respondent is also to pay 50% of the receipted renovation expenses of $42,050.90, as agreed. The mother is to provide her calculations within seven days, and the father has seven days to reply. They may return to Justice Kristjanson in no later than 21 days for an order setting the amount owed as carrying costs, such costs to be paid out of the proceeds of sale of the home.

Kristjanson J. Released: May 26, 2023