Court File and Parties

COURT FILE NO.: FS-17-415014 DATE: 20231221

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DALILA LILIANA JARVIS Applicant

– and –

STEPHEN MICHAEL JARVIS Respondent

Counsel: Self-Represented, for the Applicant Shelley C. Quinn, for the Respondent

HEARD: December 19, 2023

REASONS FOR DECISION

AKAZAKI, J.

[1] For almost seven years, since the parties’ separation in January 2017, the applicant mother has enjoyed de facto exclusive possession of the matrimonial home with the two children of the marriage, ages 15 and 13. The respondent father is the sole owner and has paid the mortgage instalments, property taxes, insurance and other household expenses. Shortly after he moved out, and nine times before today’s hearing, he has asked for the mother’s consent to sell the home, to liquidate the equity and ameliorate the parties’ ability to look after the children on an equal economic footing. The mother has always refused her consent.

[2] The father has now brought a motion for an order under s. 23 of the Family Law Act, R.S.O. 1990, c. F.3 (FLA), to dispense with the mother’s consent to sell the property. He also asked for an exclusive possession order under s. 24 to allow him to fix up the home and allow access by potential buyers and others. To leave no doubt as to his intentions, he has proposed that each party receive an advance from the proceeds pending equalization.

[3] The circumstances of the case reveal a disharmony in the matrimonial law of Ontario that, in practice, has afforded non-titled spouses more grounds to assert continued occupation of the matrimonial home than spouses who enjoy legal or equitable title. Although I would grant the motion based on either legal standard, they are substantively different and require separate analyses. Moreover, the lack of a common standard requires the court to harmonize them.

THE DISPUTE

[4] The father is a senior government lawyer. The mother is a lawyer trained and licensed in Mexico. She has alleged that her husband actively impeded her ability to requalify in Canada and gain National Committee on Accreditation (NCA) status to practice law in Ontario. I do not need to make specific findings, because the involvement of children and the fact that the husband pays child and spousal support establishes that the mother’s career and economic self-sufficiency was affected by the marriage and by the breakup. The children are, as she submitted, smart and accomplished young people and a credit to their parents.

[5] The father purchased the matrimonial home shortly before the parties married. The increase in value of the home will have to be equalized for the period of the marriage.

[6] The father has been carrying the property, including two mortgages, in addition to his child and spousal support payments. Despite earning a good income, he incurs a monthly deficit in the order of $4,000. The mother points to his high gross income, but deductions for income tax and pension his net income is not high. He services a personal line of credit and two credit cards, all approaching $50,000. He has had to borrow money from family members in the total amount of almost $100,000. He is in arrears with his landlord. The effect of this staggering debt will soon leave him in a position of being unable to provide a home for his children during his parenting days.

[7] The mother’s position was that the children require a stable home to continue thriving at school. She also submitted in her evidence that the children have developed a high level of anxiety over the prospect of losing their home. The mother characterized the last six or seven years as the husband’s attempt to use his sole ownership to harass her. This misuse of home ownership has, in turn, prevented her from speeding up her education and resumption of professional life. She claims to be unable to afford a new premises until she receives her accreditation from the Law Society and establishes herself as a lawyer.

[8] The issue on the motion is therefore defined (1) by the mother’s opposition to the sale on the basis of her inability to afford alternate accommodation and on the basis of the stability of the lives of the school-age children and (2) the serious financial hardship to the father.

‘MALICIOUS, VEXATIOUS OR OPPRESSIVE’ TEST

[9] Had the property been held in both names, either legally or equitably, the Partition Act, R.S.O. 1990, c. P.4, s. 3, would entitle the father to an order for partition and sale, unless his motive were “malicious, vexatious or oppressive”: Latcham v. Latcham, 2002 CanLII 44960 (ON CA). The rationale for the formulation of this test was that the FLA did not oust the Partition Act, and therefore the rights under the property legislation governed. The high onus on the non-consenting party was the discretion under the Partition Act in respect of all properties with multiple ownership interests, regardless of marital relation: Silva v. Silva, 1990 CanLII 6718 (ON CA).

[10] The origin of this onus can be traced to the court’s discretion to refuse partition and sale, now settled in the word “may” in s. 2 of the Partition Act to qualify the court’s power to compel partition or sale. In common law, only co-parceners could obtain partition: Law Reform Commission of Saskatchewan, A New Partition and Sale Act: Proposals, Law Reform Commission of Saskatchewan, 2001 CanLIIDocs 178 p. 3. While the rationale for this restriction is said to be “lost in time” (ibid), most likely it stemmed from the involuntary nature of the co-ownership by co-parceners, compared to the freedom of other co-owners to take title to undivided interests in land. There remained the practical deadlock of co-owners to take any action without unanimity: Coopérants, Mutual Life Insurance Society (Liquidator of) v. Dubois, 1996 CanLII 242 (SCC), [1996] 1 SCR 900, at para. 20. In common law, unity of interest creates the deadlock, whether the land is held in joint tenancy or tenancy in common. Three other unities, interest, time and possession, are required to change tenancy in common to joint tenancy: Zeligs v. Janes, 2016 BCCA 280, at para 38. As a practical matter, co-owners of real property could not sell their interests without the consent of all other co-owners, and co-ownership could be used to defeat the interests of individual co-owners.

[11] This inflexibility of the common-law therefore became the subject of partition legislation, as early as the 1500’s in England. It must be observed that there can be no sale by a co-owner in the absence of partition, and the right to sell was added to the statute as an aid to partition by liquidating the land to money: Morrison v. Morrison (1917), 1917 CanLII 536 (ON CA), 34 D.L.R. 677 (Ont. C.A.), at 680. Early English decisions were more concerned with partition, i.e. physical as well as juridical division, resulting in reconfiguration of land and buildings. Today, municipal and provincial laws prohibiting division make physical partition unfeasible, resulting in the situation where sale is the preferred remedy.

[12] The original partition legislation in Upper Canada and Ontario made partition mandatory on the application of a co-owner. It was a mid-20th-century deletion of the word of “shall” from the earlier wording of s. 2, “shall and may,” that introduced judicial discretion: Re Hutcheson and Hutcheson, 1950 CanLII 93, [1950] O.R. 265 (ON CA). Tracing the historical arc of the statute, the legislature originally flipped a general prohibition against partition or sale to a mandatory partition or sale. Subsequently, it scaled back that reform to a discretionary remedy.

[13] The Court of Appeal in the 1990 Silva decision saw the intersection of the Partition Act and the FLA strictly on property terms. It held that the two statutes were not incompatible. If the substantive rights under the FLA could be jeopardized by an order for partition and sale, the sale should be deferred pending the determination of rights under the FLA. In Silva, there was no reason to defer the sale and division of proceeds while the parties waited to have their equalization claim determined later. The determination of rights under the FLA could be raised as grounds for deferral of the sale, but the discretion under the Partition Act was subject to judicial restraint. Since the right of the spouses to occupy the matrimonial home would not be determined apart from being terminated at the end of the FLA proceeding, possessory rights provided no defence to a partition and sale application apart from short-term procedural considerations already subsumed into the Partition Act’s discretionary criteria of malice, vexatiousness, or oppression.

[14] In Silva, the custodial mother had relocated to England with the child and was supported on welfare. She had received no support payments from the husband, who resisted the sale of the matrimonial home until the equalization issue was determined. The rule with regard to the intersection of the FLA with the Partition Act has thus governed family law motions on this issue, without regard to the issue of residency, either for the child or for the occupying spouse. The facts in Silva thus illustrated the importance of freeing up capital to support the immediate needs of the family. Otherwise, holding on to the property during a period when the single-earner microeconomy must now sustain two homes can be more detrimental to the parties and to the children than any dislocation.

‘BEST INTERESTS OF THE CHILDREN’ TEST

[15] Because of the father’s sole ownership, the Partition Act does not apply. He is prima facie entitled to sell the home, but s. 21 of the FLA prohibits alienation without the mother’s consent. Under s. 23, the court has the power to authorize the sale without her consent, if satisfied that the mother is withholding consent unreasonably. The onus remains on the mother to show her withholding is not unreasonable, but this has been formulated based on the best interests of the children: Jamil v. Iqbal, 2014 ONSC 4650, at para. 6; Goldman v. Kudeyla, 2011 ONSC 2718, at para. 19.

[16] The courts have thus treated the absence of a statutory right to sell the property as grounds for imposing a different test. The onus remains on the non-consenting spouse, but the interests of the children can be raised as an obstacle to the sale.

[17] On the facts of this case, I do not consider the stress imposed on the children to be sufficient to make the mother’s withholding of consent reasonable, or not unreasonable, to follow s. 23 more literally. Despite the children being the focus in the case law, the wording of s. 23 clearly requires the court to consider whether the spouse is withholding consent unreasonably.

[18] The mother filed an affidavit citing the children’s anxiety at the prospect of having to move out of the home. She related how, in October and November 2023, they started panicking. In response, she has put them into psychotherapy. She filed no records, and one has to suspect her motives for using the children in this manner. The history of the litigation also shows that she professes to be protecting the children’s interests while being the actual cause of their detriment.

[19] During the hearing, I asked the mother repeatedly what steps she had taken from 2017 to prepare her children for the eventuality that they would have to move out of the house, because this evidence was not in her responding affidavit. She avoided the question and instead spoke at length about the father’s conduct during the marriage and after separation. I took from this, as I told her, that she had done nothing to prepare herself or the children for transitioning from the matrimonial home. In the circumstances, I find that her inaction was the true source of the children’s anxiety. Moreover, I find that her subjecting them to therapy was more likely motivated by a desire to find another obstacle to the father’s need to sell the property than a bona fide act of concern for her children’s welfare. Psychotherapy is an invasive medical treatment that should not be undertaken lightly.

[20] The other side of the equation is the hardship to the father. If he is unable to keep paying the mortgage instalments and his rent, he would likely have to choose accommodations for himself that are unsuitable for living with the children. He is already finding it difficult to look after them in the manner they were accustomed prior to the separation. The best interests of the children include time with both parents, not just one: Barendregt v. Grebliunas, 2022 SCC 22, at paras. 133-135.

[21] The circumstances of the children clearly dictate that it is in their best interests to free up the capital locked into the home, to allow the parents to relieve financial pressure. I observe that the relief sought by the father includes an equal partial distribution of funds. He has clearly been considering the best interests of the whole family. The mother, on the other hand, has seen the situation entirely from her own perspective, including putting the children into therapy to gain some upper hand in the litigation.

HARMONIZING THE STANDARDS

[22] In the event I am incorrect in my analysis of the children’s best interests under cases such as Jamil and Goldman, it is my view that the principle in Silva should apply to all cases, no matter whether the ownership of the matrimonial home is held by one spouse or two. There is ultimately no principled reason for the difference in legal standards.

[23] Whereas Silva dealt with the interaction between two statutes, the FLA and the Partition Act, the instant case concerns the interaction between the FLA and the common-law right of an owner to sell real property registered in his name. The historical analysis of the right to partition and sale, as subject to a narrow ambit of judicial discretion, reveals that the relative primacy of the partition and sale right originated from the need to unblock the common law’s inability to give a co-owner the full rights of an owner. Such an impediment does not exist in the case of a sole owner.

[24] Partition legislation therefore should not be seen as an independent right but rather as the right to remove an impediment posed by a non-consenting co-owner. For this reason, s. 2 provides that the non-consenting party “may be compelled to make or suffer partition or sale of the land,” and s. 3 authorizes a person interested in the land (not just co-owners) to bring an application for such relief. Since the discretion introduced by the deletion of the word “shall” and interpreted in Hutcheson has its source in the partition legislation and not in family law reform legislation, we must therefore look for the statutory basis for discretion in s. 23 of the FLA in the case of sole ownership.

[25] The starting point for the interpretation of s. 23 of the FLA is the preamble to the statute:

Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership; and whereas in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children;

[26] The policy goal of the FLA, originating in family law reform in the 1970s and 1980s, was to enable spouses to separate in an orderly manner, recognizing their ongoing roles as caregivers of children (where there are children). This includes the settlement of their affairs as a partnership. The centrepiece of property division under the FLA is equalization, not the conferral of property rights. The matrimonial home is by default included in this equalization regime, to recognize the value of each spouse’s contribution. This concept was a direct answer to Murdoch v. Murdoch, [1975] SCR 423, which denied the value of the wife’s work on the ranch in the division of property on separation.

[27] The status of the FLA as law reform, to be construed liberally pursuant to the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F s. 64, is therefore unquestionable. Liberal construction of the statute in accordance with its stated aims can, nevertheless, conflict with other rights. Where a statute purports to derogate from property rights, the strict construction rule applies: Sullivan, The Construction of Statutes, Seventh Ed., (Toronto: LexisNexis, 2022), at p. 493. The correct way to incorporate these two principles into a reading of s. 23 of the FLA is to construe it liberally within the internal policy aims of the legislation, while reading it strictly against any unstated expropriation.

[28] The FLA does not confer property rights per se. Indeed, s. 7 describes the right to equalization as “personal as between the spouses.” Since the right of ownership of real property is a bundle of rights that includes the right to transfer it to others, the possessory rights of spouses under s. 19 and s. 21 do not confer ownership rights on a non-titled spouse. Had the FLA contained a provision transferring title, liberal construction would have required that provision to be construed as law reform and to prevail over common-law ownership. No such provision has been enacted. It is therefore in the absence of an intent to reform property law that the court must construe s. 23.

[29] Section 23 is a procedural provision, in the sense of s. 10 confers a procedural power on the court to dispose of matrimonial property. However, the substantive basis for granting the relief must be found elsewhere: Miller v. Miller (1996), 1996 CanLII 729 (ON CA), 132 D.L.R. (4th) 763, 20 R.F.L. (4th) 191. The non-titled spouse has two substantive rights relative to the matrimonial home: inclusion in equalization and possession.

[30] Equalization will be realized in an accounting exercise, most often after the property is sold to a third party. This reflects the reality that the marital economies cannot be sustained post-separation. The father’s financial struggle despite earning a good income demonstrate this principle. Equalization, therefore, at least contemplates sale. The sale provision in s. 13, authorizing sale to realize security preserved under s. 12, is consistent with this legislative aim of equalizing spouses’ assets.

[31] Possession, as described in the FLA, is not a concept of property law. Rather, s. 19 presumes both spouses are entitled to possession after they separate. The power to order exclusive possession under s. 24 allows the court to exclude a spouse to alleviate conflict and potential family violence. It is not worded as an ersatz form of tenancy under landlord and tenant statutes, allowing perpetuation of occupation as an estate in land. This right of possession is aided by the provision in s. 21 against unilateral alienation of the property. In other words, the statute prevented a scenario where the mother could find out shortly after the 2017 separation that the father had sold the property.

[32] Insofar as the right in s. 21 provides breathing room against such alienation of property, including providing the children a home while the spouses settle their affairs, the statutory rights to possession and non-alienation cannot be used to incentivize the delay in settling the spouses’ affairs. Indeed, the preamble to the statute precludes such a reading by specifying an “orderly and equitable” settlement of affairs. This overarching interpretive aid requires the court to construe ss. 19, 21, and 23 as contemplating a managed untangling of the post-separation family’s assets and economy to enable the new family units to become self-sustaining. Had the legislature intended to confer on a non-titled spouse a right to prevent the sale of the home above and beyond a procedural prevention of extrajudicial eviction, such a derogation of the owner’s rights would have been expressly stated in the statute or an amendment to it. Moreover, I cannot read the FLA as enabling one spouse to use the children as an excuse to bankrupt the other spouse, when there is a valuable asset in the proceeding that could alleviate the economic consequences of the marital breakup.

[33] In conclusion, these provisions in the FLA do not contemplate a derogation of the right to sell the matrimonial home any more than they impede partition or sale under s. 2 of the Partition Act. The legal test for a spouse’s ability to sell a solely owned matrimonial home must therefore be same as the sale of a property jointly or commonly held by the spouses. To hold otherwise would confer on a non-titled spouse property rights not held by a spouse with an ownership interest. That absurd result alone is contrary to the foundational principle of the FLA as recognizing marriage as a form of equal partnership. Thus, both in both types of home ownership, the test for determining the right to sell must be whether there exists “malicious, vexatious, or oppressive” motive or conduct on the part of the party proposing the sale. There has been no such conduct by the father in this case. The motion must be granted.

COSTS

[34] The father was the successful party and is therefore entitled to costs under subrule 24(1). His counsel estimated the partial indemnity costs of the motion to be in the order of $10,000, including the steps taken to get to the motion.

[35] The mother did not comment on the quantum but pleaded that she is impecunious. The reason for that is that she has refused to allow the father to free up capital from the home, inter alia, to pay her the proposed advance on equalization. To relieve her of her inability to pay the costs, I will order that it be deducted from her advance from the net proceeds of the sale.

CONCLUSION

[36] I therefore make the following orders, following the reasons for decision above:

1. Pursuant to section 23(b)(iii) of the Family Law Act, the Respondent husband, Stephen Michael Jarvis (“Respondent”), is authorized to sell the matrimonial home known municipally as 5 Selkirk Street, Toronto, Ontario M4J 1T3, without the consent of the Applicant wife, Dalila Liliana Jarvis (“Applicant”).

2. In furtherance of the order in para. 1 above, the Applicant’s consent is not required for the following steps:

a. Entering into a Listing Agreement;

b. Signing or signing back any Agreements of Purchase and Sale;

c. Signing any title transfer documents;

d. Signing any documents with respect to the discharge of any registered encumbrances; and

e. Signing any other documents with respect to the sale.

3. The house shall be listed for sale on a date selected by the Respondent, on the advice of the real estate agent.

4. On closing, and after payment of all registered encumbrances, commissions and adjustments, the real estate lawyer shall distribute the sum of $100,000 to each party. The remaining net proceeds shall be held by the real estate lawyer’s trust account until the issue of equalization has been dealt with on a final basis, or on further order of the court or on agreement of the parties.

5. Pursuant to section 24 of the Family Law Act, the Respondent shall have exclusive possession of the matrimonial home commencing on January 15, 2024, at 1:00 p.m. and until the sale of the home closes, for the purposes of readying the home for presentation and to provide access to potential buyers, agents, and inspectors.

6. At the sole discretion of the Respondent, by notice in writing by his lawyer, the January 15, 2024, date may be delayed, provided the Applicant shall on 24 hours’ notice by his lawyer or by the real estate agent, temporarily vacate the matrimonial home to provide access to allow the Respondent to ready the home for sale, including painting, repairs and staging.

7. Notwithstanding any existing temporary parenting order with respect to the residency or parenting schedule for the children [names and birthdates to be included in the formal order], the children may reside temporarily with the Respondent during the period of temporary vacancy in para. 6 above, or at any time between January 15, 2024 and the closing date, if the Applicant has not secured appropriate accommodation for them.

8. Costs of the motion are fixed in the amount of $10,000, inclusive of disbursements and HST. This amount is exigible from the $100,000 advance to the Applicant in para. 4 above.

9. The Applicant’s approval of the formal order is hereby dispensed with.

Akazaki, J.

Released: December 21, 2023