COURT FILE NO.: FS-21-62-00 DATE: 2023-07-04

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

R.D. K. Ronning, for the Applicant father Applicant

- and -

K.D. S. Lundin, for the Respondent mother Respondent

HEARD: June 29, 2023, via ZOOM at Kenora, Ontario

Mr. Justice W. D. Newton

Decision On Motion

Overview

[1] The mother [1] brings a motion for an order:

a. that the father comply with an income disclosure order; b. sale of the jointly owned duplex; and c. occupation rent from the father.

The Facts and Proceedings to Date

[2] The parties were married but separated in December 2020.

[3] There are two children of the marriage.

[4] On February 16, 2022, Fregeau J. made an order on consent that the children reside with the father on a temporary, without prejudice, basis, that a vehicle be transferred, and that each make financial disclosure including income.

[5] The matrimonial home was sold in October 2021.

[6] The mother has been ill and unable to work. She is currently in receipt of ODSP. A claim against her long-term disability insurer was resolved recently. Although the father claims child support, no motion has been brought.

[7] The only significant assets for equalization purposes are the mother’s pension which has yet to be valued and a rental property, the duplex, which is jointly owned. The father has been residing in the duplex with the children, rent-free, since June 2021. The duplex has yet to be valued.

[8] The mother brought this motion because the father had not complied with his financial disclosure obligations, including rental income, and did not sign documents necessary to allow the mother’s pension to be valued.

[9] The father did not comply with the temporary order made 15 months earlier for income and rental income disclosure or sign the necessary form for the pension valuation until after this motion was brought on June 8, 2023.

[10] The parties have not exchanged Net Financial Property statements because the pension valuation has not been completed. I was advised by the parties that the valuation should be completed within 60 days. Counsel for the mother suggests that the value will not be of great value given the duration of contributions and the salary earned.

[11] Counsel for the father advised that the father is arranging an appraisal of the duplex and that that appraisal should also be available within 60 days.

Positions of the Parties

[12] Since the father has now complied with some of the disclosure obligations, the mother is seeking that the father pay to her 50% of the fair market rent for the unit that he resides in from June 1 until the duplex is sold, with prior occupation rent and her claim for a share of the income from the rental property deferred to trial.

[13] The mother also seeks sale of the jointly owned duplex noting that it is not a matrimonial home and that she has a right to the sale with the onus on the father to demonstrate why it ought not to be sold. The mother relies upon case law for the proposition that the sale should only be refused if the application is vexatious, malicious or oppressive [2].

[14] Anticipating the father’s position that he may argue that he will be prejudiced on equalization, the mother submits that the onus is on the father to demonstrate that his right to an equalization payment may be prejudice and relies upon the following passage from Bonnick v. Bonnick, 2016 ONSC 657:

[3] In my view, the law with respect to whether the court should grant an order for the partition and sale of a jointly owned matrimonial home is long since settled. The equalisation scheme in Part I of the Family Law Act, R.S.O. 1990, c. F.3 (FLA) does not “oust” the court’s jurisdiction under the Partition Act, R.S.O. 1990 c. P.4 (PA). [1] As Justice Finlayson said in Silva, at paragraph 23, “an application under s. 2 [of the PA] should not proceed where it can be shown that it would prejudice the rights of either spouse under the F.L.A”. Generally speaking, that statement has been interpreted to mean that an order for partition and sale of a jointly owned matrimonial home should be ordered, unless the spouse opposed to the order can demonstrate that his or her right to exclusive possession, an equalisation payment, or some other possible relief pursuant to Part I of the FLA, would be prejudiced. The onus to demonstrate such a possible prejudice lies with the party opposing an order under section 2 of the PA.

[15] As the mother notes, the rental property is not a matrimonial home.

[16] The father resists the sale of the property and the claim for occupation rent.

[17] He resists the sale stating that it will be difficult for him and the children to secure alternate accommodation at a comparable price and that the stress of having to move would not be in the children’s best interest. He also resists arguing that he will be owed an equalization because of the $20,000 legal aid lien incurred by the mother that was against the matrimonial home, his claim for reimbursement for post separation expenses including those relating to the matrimonial home, and child support. He relies upon the following passage from Amendola v. Amendola, 2023 ONSC 1872:

8] The parties agree on this proposition, and on the related notion, articulated by the Court of Appeal for Ontario in Latcham v. Latcham (2002), 2002 ONCA 44960, 27 R.F.L. (5th) 358 (Ont. C.A,), that the court has a narrow discretion to refuse partition, and only on the basis that a proposed sale is the result of malicious, vexatious or oppressive conduct.

[9] In the domain of family law, the clarity of that proposition can be clouded to some extent by considerations of competing rights and interests under the Family Law Act, R.S.O. 1990, c. F.3. In Goldman v. Kudeyla, 2011 ONSC 2718, 5 R.F.L. (7th) 149, at para. 18, McGee J. noted that:

To make a pre-trial order for the sale of a matrimonial home the court must first determine whether the resisting party has established a prima facie case that he or she is entitled to a competing interest under the Family Law Act. If not, then the right to sale prevails. If so, then the motion for sale is denied unless the selling party can demonstrate that the sale would not prejudice the rights of the resisting party.

[10] In this regard, cases that have discussed these issues confirm that in the analysis of prejudice to the resisting party, the court may take into account such factors as the timing for trial, potential prejudice with respect to an equalization payment, or the need to preserve the residence for a vulnerable spouse or child who might well retain the home in the cause [Underline added.]

[18] With respect to occupation rent the father relies on this passage from Malik v. Malik, 2015 ONSC 2218:

[154] An award of occupational rent is an equitable remedy that will only be awarded in exceptional cases; see Foffano v. Foffano, [1996] O.J. No. 3284, and Rezel v. Rezel, 2007 ONSC 12716, [2007] O.J. No. 1460, McColl v. McColl, 1995 ONSC 7343, 13 R.F.L.(4th) 449 and Higgins v. Higgins, 2001 ONSC 28223, [2001] O.J. No. 3011.

[155] The relevant factors as to an award are set out in Higgins v. Higgins. These factors include:

a. The conduct of the non-occupying spouse including the failure to pay support; b. The conduct of the occupying spouse including the failure to pay support; c. Delay in making the claim; d. The extent to which the non-occupying spouse was prevented from having access to his or her equity in the home; e. Whether or not the non-occupying spouse moved for the sale of the home and, if not, why not; f. Whether the occupying spouse paid the mortgage and other carrying charges of the Matrimonial Home; g. Whether the children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support; h. Whether the occupying spouse increased the selling value of the property.

Analysis and Disposition

[19] With respect to occupation rent there are too many unknown variables to assess whether occupation rent is owing, particularly given that I intend to order the sale, but with an extended deadline. This issue is best left for trial if not resolved before by the parties.

[20] Although this is not a matrimonial home, the issue of whether a sale should be ordered is “clouded” by the competing family Law interests. I accept that there may be some prejudice in equalization to the father but, without valuations of the mother’s pension, the rental property, and the various debts, the prejudice is unknown. I also accept that there will be some disruption for the children if they are required to move. However, I am not satisfied that the father has met his onus to preclude a sale.

[21] The parties have not advanced this proceeding significantly since separation.

[22] Within 60 days, the parties will have sufficient information to complete net family property statements.

[23] I will allow the parties a short window to resolve the issue of equalization but failing agreement, the rental property will be listed for sale no later than September 30, 2023.

[24] No later than September 15, the parties shall agree on a realtor, and failing agreement, the parties may seek an urgent motion, 30 minutes, before me to appoint a realtor. No formal motion is required and the only issue to be addressed is the selection of a realtor.

[25] The property shall be sold upon receipt of the first reasonable offered purchase price.

[26] Upon closing, the net sale proceeds are to be held in trust and there will be no distribution of the sale proceeds without the consent of the parties or further order of this court.

[27] The mother has been partially successful on this motion and this motion was required to obtain long-overdue disclosure from the father. The mother is entitled to her partial indemnity costs fixed in the amount of $2500. Those costs are payable within 60 days.

“Original signed by”

The Hon. Mr. Justice W.D. Newton

Released: July 4, 2023

COURT FILE NO.: FS-21-62-00 DATE: 2023-07-04 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N: R.D. Applicant - and - K.D. Respondent

DECISION ON MOTION Newton J.

Released: July 4, 2023

Footnotes:

[1] Non-specific identifiers will be used to protect the privacy of the parties. [2] see for example Salomon v. Salomon, 2007 ONSC 10416 at para.19. [3] Bonnick v. Bonnick, 2016 ONSC 657. [4] Amendola v. Amendola, 2023 ONSC 1872. [5] Malik v. Malik, 2015 ONSC 2218.