Court File and Parties

Oshawa Court File No.: FC-19-245 Date: 2023-01-16 Ontario Superior Court of Justice – Family Court

Between: Sandor Szabo, Applicant And: Tammey Szabo-Jukes, Respondent

Counsel: Jason Isenberg, for the applicant (responding party) Gail Macrae, for the respondent (moving party)

Heard: December 13, 2022

Decision on Motion for Partition of Matrimonial Home and Interim Spousal Support

Leibovich J.:

[1] The respondent, Ms. Szabo-Jukes, has brought a motion for 1) partition and sale of the matrimonial home and 2) interim spousal support. I did not deal with Ms. Szabo-Jukes’ disclosure motion as it was not referenced in her Notice of Motion and there was simply no time to address it on the short motion list.

[2] Ms. Szabo-Jukes and applicant, Mr. Szabo, started living together in 1993. They were married on June 20, 1998, and separated on July 1, 2016. The parties jointly own the matrimonial home at 7 Wakeford Road in Little Britain, Ontario. Mr. Szabo has lived in the matrimonial home since the separation. He has not paid any spousal support since the separation. Mr. Szabo issued his application on August 29, 2019. He was able to serve Ms. Szabo-Jukes on May 12, 2020. A number of case conferences have been held. Ms. Szabo-Jukes was ordered to pay costs to Mr. Szabo in the amount of $750 for non-attendance at a May 25, 2021 case conference. That costs order has yet to be paid. On December 15, 2021, Ms. Szabo-Jukes was granted leave to proceed with this motion.

The request for partition and sale of the matrimonial home

[3] The applicable principles for a request for partition and sale of the matrimonial home was helpfully set out recently by Faieta J. in Sanvictores v. Sanvictores, 2022 ONSC 2673 at para. 13:

The issuance of an order for the sale of a jointly held property under sections 2 and 3 of the Partition Act, R.S.O. 1990, c. P.4, is governed by the following principles:

1. A court is required to compel the partition and sale of a jointly held property unless the opposing party has shown that there is malicious, vexatious, or oppressive conduct on the part of the moving party in relation to the sale itself: Marchese v. Marchese, 2019 ONCA 116, para. 5.

2. There is some overlap in the scope of the terms "malicious" or "malice", "vexatious", and "oppressive". "Malice" arises when a step is taken for an improper purpose including spite, ill-will, vengeance, or to gain a private collateral advantage. A step may be viewed as "vexatious" when it is taken to harass or oppress others rather than to assert a legitimate right. The sale of a matrimonial home is "oppressive" when the co-tenant that opposes the sale will suffer serious hardship if the matrimonial home is sold: MacDonald v. MacDonald (1976), 14 O.R. (2d) 249 (Div. Ct.), at p. 254.

3. Additional considerations apply when a spouse seeks an order for the sale of a matrimonial home prior to the final determination of the spouses' claims under the Family Law Act, R.S.O. 1990. c. F.3, ("FLA"). In such case, an application under the Partition Act should not proceed when the opposing spouse shows that the sale would prejudice the rights of a spouse under the FLA or a court order (see Silva v. Silva (1990), 1 O.R. (3d) 436 (C.A.), at p. 445; Martin v. Martin (1992), 8 O.R. (3d) 41 (C.A.), at para. 26 or, at the very least, that the opposing spouse's arguable claims under the FLA would be prejudiced (see Binkley v. Binkley, [1988] O.J. No. 414 (C.A.), at para. 3; Gibson v. Duncan, 2013 ONSC 5377, at paras. 20-23).

4. The court does not have jurisdiction to impose a right of first refusal or force parties into the buyout of a property: see Gertley v. Gertley, 2022 ONSC 1750, para. 13; Laurignano v. Laurignano, 2009 ONCA 241, 65 R.F.L.(6th) 15;

Also see Howard v. Howard, 2022 ONSC 6915, Dhaliwal v. Dhaliwal, 2020 ONSC 3971, 42 R.F.L. (8th) 321 and R.L. v. M.F., 2022 ONSC 1677.

[4] As stated in Marchese v. Marchese, 2019 ONCA 116, para. 5, Ms. Szabo-Jukes has a prima facie right to partition and sale:

As the trial judge correctly stated, the respondent had a prima facie right to an order for the partition and sale of the matrimonial home. As a result, the trial judge was required to order the sale unless the appellant demonstrated that such an order should not be made and showed there was malicious, vexatious or oppressive conduct on the part of the respondent in relation to the sale itself. The trial judge found that the appellant did not allege there was any such conduct nor did she put forward any other legal basis to preclude the sale of the matrimonial home.

[5] Ms. Szabo-Jukes is, at the moment, unemployed. Her unemployment insurance premiums have run out. She has equity in the matrimonial home. She proposes that the house be sold and that each party receive $50,000 with the remainder to be deposited in court pending the resolution of the family law proceedings. Mr. Szabo opposes the request on the following basis:

1. He wishes to remain in the matrimonial home as he has been living there since the date of separation. He submits that Ms. Szabo-Jukes is acting maliciously in not selling him her interest. He has paid, since the date of separation $103,194 in mortgage, property taxes and property insurance. He states in his affidavit that:

If I am ultimately successful with my claims, I will be seeking payment from the Respondent by her interest in the matrimonial vesting to me. I would very much like to keep the matrimonial home and as such an immediate sale would be oppressive to me, cause prejudice to my ability to purchase the home, and as a result I would suffer serious hardship.

2. Ms. Szabo-Jukes’s delay in seeking partition has caused him prejudice because the value of the house has increased significantly. He states in his affidavit:

The Respondent, as a co-owner, seeking an immediate sale of the home is vexatious given that she is benefitting from that increase, effectively due to her disinterest and delay, when I have had to carry the cost of the home in the interim.

[6] I disagree with Mr. Szabo. In essence, Mr. Szabo submits that Ms. Szabo-Jukes should not be allowed to force a sale because she refuses to allow him to buy her interest. The case law is quite clear that the fact that one spouse wants to buy out the interest in the house is not a basis to prevent a partition and sale; Allard v. Sylvain-Allard, 2015 ONSC 2052 at para. 13; Paganelli v. Paganelli, [2002] O.J. No. 2705 (S.C.J.) at para. 6 and 14), Manteaw v. Nyarko, 2011 ONSC 5401 at para. 13. A court has no jurisdiction to force one owner to sell the other owner their interest. As stated in Gertley v. Gertley, at para. 13.

It is common ground that the court does not have jurisdiction to force parties into a buyout of the home as the Applicant has been attempting to achieve over the past year: see Mudronja v. Mudronja, 2014 ONSC 6217 and Laurignano v. Laurignano, 2009 ONCA 241, 65 R.F.L. (6th) 15.

[7] Mr. Szabo submits that Ms. Szabo-Jukes is being malicious by not selling her interest to him. She is not. Rather she is adopting a course of action that allows her to obtain the best price for the asset; Buttar v. Buttar, [2013] O.J. No. 372 at para. 64.

[8] Mr. Szabo complains that he has carried the costs of the house over the last 6 years. Yes, he has paid the mortgage, property taxes and property insurance. But that has been the costs of his accommodations. He has the right to be compensated, but that compensation may very well be offset by a claim of occupancy rent.

[9] I also see no prejudice to Mr. Szabo arising from the fact that the property has increased in value. The property has increased in value for both parties.

[10] I also see no prejudice to Mr. Szabo’s rights under the FLA proceedings in ordering the sale of the house. I also note that ordering partition of the home does not mean that Mr. Szabo cannot bid on the house; see Laurignano v. Laurignano, 2009 ONCA 241, 65 R.F.L. (6th) 15 at para. 5. On the other hand, dismissing the request will cause a real hardship to Ms. Szabo-Jukes, as she is deprived of monetizing her one asset at a time when she is experiencing financial difficulties. Mr. Szabo has not shown that there is malicious, vexatious, or oppressive conduct on the part of the moving party in relation to the sale itself. The request for partition and sale is granted.

The request for interim spousal support

[11] Spousal support is governed by s. 15.2 of the Divorce Act, R.S.C. 1985, c. 3. Under s. 15.2(4) the court must consider the “condition, means, needs and other circumstances of each spouse”, taking into account the following factors:

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

[12] In determining entitlement, the court must take into account the objectives of a spousal support order as set out in s. 15.2(6), which reads as follows:

An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[13] When making an interim order, the test is reasonableness: section 15.2(2) of the Divorce Act states:

Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

[14] There are three grounds for entitlement to spousal support: (1) compensatory; (2) contractual; and (3) non-compensatory; Bracklow v. Bracklow, [1999] 1 S.C.R. 420, at para 15. A review of the authorities reveals the following principles which ought to be considered in deciding whether to make an order for interim support:

1. On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance;

2. An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation, if possible, if the payor's ability to pay warrants it;

3. On interim support applications the court does not embark on an in-depth analysis of the parties' circumstances which is better left to trial. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support. However, in a motion for temporary spousal support, the claimant does not have to prove entitlement on the balance of probabilities as he or she would have to at trial. He or she need only show a prima facie case for entitlement;

4. On interim applications the need to achieve economic self-sufficiency is often of less significance;

5. Imputing income to a payor may only be done on a rational basis, grounded in the available evidence; and

6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise.

See Cassidy v. McNeil, 2010 ONCA 218, 99 O.R. (3d) 81; Drygala v. Pauli (2002), 164 O.A.C. 241 (CA) at para. 44; Demers v. Demers, 2019 ONSC 6111; Samis (Guardian of) v. Samis, 2011 ONCJ 273, 2 R.F.L. (7th) 476; Patang v. Miral, 2018 ONSC 6430.

[15] Mr. Szabo opposes the request for interim spousal support on the basis that there is no evidence of entitlement. He submits that while she may have a need, there is no entitlement as Ms. Szabo-Jukes was never limited in seeking full time employment by any of the circumstances of their relationship and marriage.

[16] Mr. Szabo is correct that without a finding of entitlement, even in the case of an interim order, there can be no order for spousal support: Cassidy v. McNeil, 2010 ONCA 218, 99 O.R. (3d) 81.

[17] The evidence regarding the request for spousal support that was filed on this motion is thin. However, it appears that Ms. Szabo-Jukes’ claim for spousal support is on a non-compensatory basis. As summarized by Chappel J. in McBennett v. Danis, 2021 ONSC 3610, [2021] OJ No. 2796, at para. 356:

Spousal support entitlement can also arise on a non-compensatory basis (also referred to as a "needs-basis"). This ground of entitlement is founded on the claimant spouse's economic need alone at the time of separation, even if that need is unconnected to any disadvantage arising from the relationship (Bracklow; Kallaba v. Bylykbashi, 2006 CarswellOnt 749 (C.A.), at para. 81; Roseneck). Again, in assessing entitlement founded on needs-based considerations, the extent of the claimant spouse's need should be measured against the marital standard of living of the parties, and the weight to be accorded to that standard will depend on the facts of each case (Brown v. Brown, 2013 NBQB 369 (Q.B.) ("Brown"); Fisher; Gray, at para. 27; Berger v. Berger, 2016 ONCA 884 (C.A.), at para. 117; Mason, at para. 201). The obligation to support a spouse based on need is premised on the notions that relationships can create "interdependencies that cannot easily be unravelled when the relationship ends" (Bracklow, at para. 30), and that primary responsibility for supporting a dependent partner should rest upon the other spouse rather than the state (Bracklow, at para. 23). ….

[18] As noted by the British Columbia Court of Appeal though, in Lee v. Lee, 2014 BCCA 383, 64 B.C.L.R. (5th) 313, marriage does not engage an automatic "tool of redistribution."

[19] This is a motion for interim spousal support, not a final spousal order. The nature of the wife’s claim for support and the evidence for and against will be canvassed thoroughly at trial. A detailed analysis is not appropriate at this stage.

[20] As asked and noted by McDermot J. in Lamb v. Watt, 2017 ONSC 5838 at para. 27:

Does this applicant have a prima facie non-compensatory entitlement to spousal support? It is clear that income discrepancy alone does not create a non-compensatory claim: see Fisher v. Fisher, 2009 ABQB 85 and Calvert v. Stewart, 2009 CarswellOnt 671 (C.J.). There must be some evidence that the disadvantage to the recipient spouse must arise from the breakdown of the marriage.

[21] In my view, a prima facie case has been made. What is undisputed is that the parties were living together for 23 years and were married for 18 years, a significant amount of time. According to Mr. Szabo’s affidavit, Ms. Szabo-Jukes stopped working full-time in 1998, as she was suffering from depression. She has earned, on average, just short of $19,000 from 2016-2021. Although her average income from 2019-2021 was only $16,172. Ms. Szabo-Jukes is now unable to find work and suffering from a knee injury. Mr. Szabo, according to his financial statement, earned just shy of $51,000 in 2021. In my view, one can infer from the length of the marriage where Ms. Szabo-Jukes was only able to work part-time, that there was an interdependency during the course of their marriage with elements of reliance and expectation. Therefore, in my view, an order for temporary support based on an income of $51,000 for Mr. Szabo in the low-range is appropriate.

Order

[22] I make the following order:

1. There will be a partition and sale of the matrimonial home municipally known as 75 Wakeford Road, Little Britain, Ontario;

2. Both parties shall agree to the selection of a real estate agent to sell the matrimonial home municipally known as 75 Wakeford Road, Little Britain, Ontario;

3. If the parties cannot agree on the choice of real estate agent, they shall each nominate one and provide that person’s name and qualifications to the court, who shall select the agent. I shall be seized of this one issue;

4. Both parties shall accept the first reasonable offer that is recommended by the real estate agent;

5. Both parties shall sign all necessary documents to complete the sale of the matrimonial home;

6. Each party shall receive the sum of $50,000 payable to the counsel of each party in trust on the closing of the sale;

7. The balance of the net proceeds of sale, after payment of commission, legal fees, the outstanding mortgage, and payments to each party as set out in (6) shall be held in the real estate lawyer's trust account; and

8. The applicant shall pay to the respondent temporary spousal support in the amount of $1148 per month, starting January 20, 2023, and every month thereafter. The applicant may deduct the $750 costs order that is outstanding from the January 20, 2023 payment.

[23] With respect to costs, in the event that the parties cannot agree, the respondent may submit her bill of costs and submissions, totalling not more than two pages, within 15 days of the release of this decision. The applicant can file his submissions, totalling not more than two pages, within 20 days of the release of this decision.

Justice H. Leibovich Released: January 16, 2023