Court File and Parties
Court File No.: FS-23-00038083-0000 Date: 2024-03-15 Ontario Superior Court of Justice
Between: Moira Kathleen Wright, Applicant – and – Joseph Robert Wilson, Respondent
Counsel: Diane Klukach, for the Applicant Self-Represented Respondent
Heard: March 12, 2024
Vella J.
Reasons for Decision
[1] The Applicant (“Applicant” or “Mother”) seeks, inter alia, the following relief:
a. An order providing her with the right to proceed with the immediate sale of the house municipally known as 93 Helena Avenue, Toronto, Ontario M6G 2H3 (the “Matrimonial Home”) in an “as is” condition;
b. An order dispensing with the Respondent’s consent to proceed with the listing, sale, and sale process of the Matrimonial Home such that the Applicant can proceed with and conclude a sale of the Matrimonial Home;
c. An order for vacant possession, requiring the Respondent to leave the Matrimonial Home within 30 days from the date of the Order; and
d. Costs.
Preliminary Matter
[2] Despite being served with the motion materials, and previously represented by a lawyer, the Respondent (“Respondent” or “Father”) did not file any affidavit or other evidence in response to this motion. Accordingly, this matter proceeded on the basis that the evidence contained in the Applicant’s affidavit is uncontested.
[3] The Respondent delivered a factum this morning. Within the confines of the factum, the Respondent purported to assert facts which he stated were true. However, I explained to the Respondent that the asserted facts within his factum do not constitute evidence and reminded him of his obligation, as a self represented litigant, to gain a basic understanding of the Family Law Rules. I have attached a list of resources for self represented litigants to these Reasons for the Respondent’s reference and benefit. He is strongly urged to re-hire a lawyer to assist him.
[4] I accepted the Respondent’s factum, notwithstanding the Applicant’s objection that it was not in conformity with the elements of a factum, and it was very late served. The Applicant will not be prejudiced as I do not treat the factum as if it contains sworn evidence (and it does not). I reviewed the Respondent’s factum as it set out a roadmap to his submissions.
Background and Steps Leading to this Motion
[5] The parties were married on July 29, 2001, and separated on June 13, 2020. They were divorced on October 24, 2021.
[6] The Applicant moved out of the matrimonial home in June 2020. The Respondent has continued to reside in the matrimonial home to the present day.
[7] The parties have two children of the marriage: MBW born February 23, 2005, and HJW born August 2, 2007. They are 19 and 16 years old, respectively.
[8] The eldest child is in university and resides in residence.
[9] The youngest child is in private boarding school.
[10] The children see their Father, but do not sleep over at the matrimonial home. They have not slept at the Matrimonial Home for approximately one year. When not at school, the children sleep over at their Mother’s rental accommodation.
[11] At a Case Conference held on January 26, 2024, Schabas J. ordered the Respondent to produce the financial disclosure requested by the Applicant within 30 days. The requested disclosure is extensive and comprised of 17 separate items. To date, the Respondent has not complied with this Order. At the same Case Conference, the Applicant was granted leave to bring this motion. A Settlement Conference has been scheduled for June 7, 2024.
Uncontested Evidence
[12] During the marriage, the Respondent was the primary income earner. He has operated various businesses.
[13] The Applicant also worked throughout the marriage. She is currently the director of Public Relations for Chanel and her total income for 2022 was approximately $285,897.00.
[14] The Matrimonial Home is registered in the Applicant’s name alone.
[15] According to the Applicant, the Matrimonial Home was purchased in 2002 for $430,000. Her view is that the property is currently estimated to be approximately $1,600,000.00. It is subject to a mortgage and Home Equity Line of Credit in the combined amount of $947,000. There is also a lien registered on title on July 18, 2023 in the sum of $4,802 likely reflecting the cost of a new furnace installed by the Respondent but not paid for. Therefore, she estimates that the net sale proceeds, after disposition costs and payment of all the encumbrances, will be about $500,000.
[16] With the exception of a three-month period from December 2020 to February 2021 during which the Respondent directed mortgage payments to the Applicant, the Applicant has had to pay for all of the mortgage, line of credit payments, realty taxes and insurance for the Matrimonial Home while the Respondent lives in it. The monthly total paid by the Applicant is about $6,000. Her rental accommodation is $2,500 a month. When the Respondent stopped making payments for the mortgage in or around February 2021, the Applicant transferred $2,066.93 biweekly to the mortgage from the line of credit.
[17] Furthermore, the Respondent has not made any child support payments or contributions to s. 7 expenses, with the exception of paying for the children to play tennis at the Toronto Lawn Tennis club where he is a member. The Applicant has paid all other living expenses and s. 7 expenses related to the children.
[18] The Applicant states that she has had to borrow funds from time to time to keep the basic costs of the Matrimonial Home (mortgage, line of credit, property taxes and home insurance) while supporting herself and the children.
[19] In his Answer, served in September 2023, the Respondent has indicated that he would consent to the sale of the Matrimonial Home.
[20] The Applicant has made several attempts to resolve the sale of the Matrimonial Home with the Respondent over the past four years.
[21] After receiving the Answer, the Applicant consulted a real estate agent, Jill Parlee, to approach the Respondent to discuss the terms of listing the Matrimonial Home for sale. The Respondent did not respond to any of Ms. Parlee’s attempts to contact him.
[22] The Applicant attached as an exhibit to her affidavit a copy of the bank account statement for the Respondent’s business, JRW Holdings Ontario Inc., dated December 2023 obtained through financial disclosure. That month’s statement shows that a number of personal expenses were run through this account including from high end retailers such as Ollifee Butchers, Harvest Wagon, Nadege, Eataly, Pusateri’s, and Soma Chocolates, as well as payments to the Toronto Lawn Tennis Club. There were total deposits of about $105,000 and total expenditures of nearly $89,000 for this month alone.
The Applicant’s Position
[23] The Applicant deposes that maintaining the expenses for the Matrimonial Home are not financially sustainable to her, and the Respondent continues to live in the Matrimonial Home without contributing to these necessary expenses.
[24] The Applicant states that it is clear, based on the Respondent’s conduct during the last four years, and his refusal to engage in discussions with Ms. Parlee, that he will obstruct any sale, and wishes to live there until such time as the Respondent determines that the Matrimonial Home should be sold. As he is not paying anything towards the Matrimonial Home, and is living essentially rent free, there is no incentive for him to move.
[25] Furthermore, as the children have not been sleeping over at the Matrimonial Home over the past year, and live in residence at their respective schools. They also live mostly with the Mother when at home. Therefore, there will be no adverse impact on them if the Matrimonial Home is sold.
[26] Finally, the Respondent has another place he can live; namely with his father who owns his own substantial house. The Respondent has lived with his father in the past.
[27] The Applicant concludes that the only way the Matrimonial Home will be sold is if the Respondent’s power to interfere with the sale is taken away.
The Respondent’s Position
[28] At the motion, the Respondent confirmed that he is consenting to a sale of the Matrimonial Home.
[29] The Respondent also advised the court that he is consenting to an order that he move out from the Matrimonial Home within 30 days.
[30] However, the Respondent’s position is that the Matrimonial Home requires some repairs and improvements to obtain the best sale price. He ballparks the cost at between $40,000 and $60,000. He claims that his father will pay for this, providing he is paid back from the Applicant’s share of the net sale proceeds.
[31] There is no evidence from the Respondent’s father.
[32] The Respondent submits that all he wants is to ensure that the Matrimonial Home is sold for the best price, after improvements, and that the net sale proceeds are preserved and held in trust, pending resolution of the equalization claim and any other claims asserted in the proceedings.
[33] The Respondent submitted that he is not content with Ms. Parlee and has been researching another real estate agent. However, again, he did not offer any evidence in this regard.
[34] The Respondent wants to have a say in how the Matrimonial Home is listed, marketed, and ultimately what offer is accepted. He objects to dispensing with his consent.
[35] The Respondent admits that he is in financial difficulty and told this court, without the sale of the Matrimonial Home, he may have to file for bankruptcy in the next 30 – 60 days. He admits that he owes about $1,000,000 to the CRA but that he will be able to handle that once he has his share of the net sale proceeds. He also told the court that his bank account is subject to garnishment.
Law and Analysis
[36] The Respondent consents to an order directing the sale of the Matrimonial Home, and an order requiring him to move out within 30 days.
[37] Aside from the Respondent’s consent, I would have made these orders in any event.
[38] Section 21(1)(c) of the Family Law Act vests discretion in the court to order the sale of a matrimonial home, whereas s. 24(a) of the Act permits the court to order the delivering up of the matrimonial home providing such an order would not impair the best interests of the children. In this case, as the children are not residing in the Matrimonial Home and no longer sleeping over in it, the sale and delivering up by the Respondent of the Matrimonial Home will not affect the best interests of either child.
[39] Furthermore, pursuant to s. 19(2)(b) of the Family Law Act, when only one of the spouses holds legal title to the matrimonial home, the other spouse’s interest can only be exercised against the titled spouse up to the point in time as a divorce is granted (or the marriage is annulled), unless a court order or separation agreement specifically provides otherwise (Miller v. Miller, (1996), 20 R.F.L. (4th) 191 (Ont. C.A.); M.V. v. T.T.T. (2013) ONCA 379 (Ont. C.A.), at para. 6). The right to possession of the matrimonial home is a personal one. In this case the parties are already divorced, and there is neither a separation agreement or court order that preserves the Respondent’s right to occupy the matrimonial home.
[40] The real issue is now whether the Respondent’s consent relating to the ultimate listing, marketing and sale of the matrimonial home should be dispensed with.
[41] The Applicant relies on s. 23(b)(iii) of the Family Law Act to dispense with the Respondent’s consent:
s. 23. The court may, on the application of a spouse or person having an interest in property, by order,
(a) authorize the disposition or encumbrance of the matrimonial home if the court finds that the souse whose consent is required,
(iii) is unreasonably withholding consent, subject to any conditions, including the provision of other comparable accommodation or payment in place of it, that the court considers appropriate;
[42] The issue here is whether the Respondent is unreasonably withholding consent. In undertaking this analysis, I can look to the relevant history relating to the attempts by the Applicant to obtain the Respondent’s cooperation to place the Matrimonial Home for sale, (Ivancevic-Berisa v. Berisa, 2012 ONSC 4943 (ONSC)).
[43] Based on the uncontested evidence before me, and the submissions made by the parties, I am satisfied that the Respondent has not cooperated with the Applicant’s attempts to have the Matrimonial Home listed for sale over the past 4 years or so. While the Respondent has indicated that he wishes to have the Matrimonial Home sold, he has not agreed to speak with the proposed real estate agent, and not put forward a separate plan and real estate agent for the Applicant to consider.
[44] The Respondent has lived in the Matrimonial Home for about 4 years, on his own, and for most of that time has not contributed any funds to the mortgage, line of credit (sustaining the mortgage), property taxes or home insurance. But for the Applicant’s continued funding of these obligations, the Matrimonial Home would have been at risk of foreclosure and sale.
[45] The Respondent claims that he wants improvements and repairs to be done to the Matrimonial Home that he characterized as relatively minor but took no steps to undertake those improvements and repairs including borrowing money from his father, which he says is readily available. Had he done so, the costs could likely have been dealt with in the final reconciliation.
[46] The fact that the Respondent states that he wants to enhance the value of the Matrimonial Home for the sake of the children is somewhat disingenuous given his claim that he needs the money for his own personal situation, which is financially precarious as he readily admitted.
[47] The Applicant is incentivized to seek the best sale price possible within the market as she has a claim for equalization and the Matrimonial Home is a significant, and perhaps the most significant, asset.
[48] It is not fair to require the Applicant to continue carrying the Matrimonial Home while being primarily responsible (de facto) for the children and her own accommodation and related expenses. Indeed, since the line of credit attached to the Matrimonial Home reached its maximum in July 2022, the Applicant has had to pay the mortgage payments from other sources.
[49] There is no evidence before the court, nor in the submissions by the Respondent (including his factum), in which he undertakes to be cooperative with the Applicant in selling the Matrimonial Home.
[50] Furthermore, by requiring the net sale proceeds from the Matrimonial Home to be held in trust, the Respondent’s claims, including equalization, will be protected, as will the Applicant’s claims in the family law proceedings. In other words, the sale of the Matrimonial Home will not prejudice those claims.
[51] The Respondent has not put forward any evidence as to why the Applicant’s choice of real estate agent would be unsuitable to act as agent for the sale of the Matrimonial Home.
[52] The Applicant has undertaken, in her affidavit as follows: “I undertake that I will seek to obtain the best price possible for the Matrimonial Home, based on reasonable sale terms, and based on selling the property “as is”.”
[53] Accordingly, I am satisfied that an order dispensing with the Respondent’s consent regarding the listing, marketing and sale of the Matrimonial Home as requested by the Applicant is appropriate.
[54] However, at the motion, I raised the prospect of directing the parties to 361Mediate following the sale of the Matrimonial Home to try to resolve the remaining issues, and particularly the distribution of the net sale proceeds of the Matrimonial Home (after payment of all encumbrances and disposition costs). The Applicant is prepared to attend, and the Respondent, subject to his ability to pay, appears also to be prepared to attend.
Orders
[55] Accordingly, I make the following orders on consent:
a. The Matrimonial Home will be sold;
b. The Respondent shall vacate the Matrimonial Home within 30 days from the date of this Endorsement.
[56] I also make the following orders:
a. Pursuant to s. 23(b) of the Family Law Act, the Applicant is permitted to proceed with the immediate sale of the Matrimonial Home;
b. The Applicant shall use the real estate she proposes, Jill Parlee;
c. The Respondent’s consent to participation in the sale of the Matrimonial Home, including the listing, entering into an Agreement of Purchase, and completing the closing of the sale of the Matrimonial Home is dispensed with;
d. The Applicant is authorized to proceed with the sale of the Matrimonial Home, without the Respondent’s consent, including the sole authority to engage and instruct the listing agent as required;
e. The Applicant has sole authority to negotiate, accept or counter offer any offer to purchase the Matrimonial Home, following the advice of the real estate agent, based on reasonable selling terms, and based on an “as is” condition, though the Applicant can, in her unfettered discretion, authorize minor repairs and touch ups at her up front expense, to be taken into account in any final reconciliation for the distribution of the net sale proceeds;
f. The Applicant has the sole authority to close the sale of the Matrimonial Home, including signing all documentation without consultation with, and without the consent of, the Respondent;
g. The Applicant shall provide the Respondent with notice of the sale, and the closing date, once finalized;
h. The Applicant shall retain a real estate lawyer for the sale of the Matrimonial Home;
i. The Applicant shall provide the Respondent with a copy of the reporting letter from the real estate lawyer with carriage of the sale of the Matrimonial Home, including any statement of adjustments forthwith upon receipt, and a copy of the lawyer’s account together with any other disposition costs;
j. The net sale proceeds from the Matrimonial Home (after payment of all encumbrances against the Matrimonial Home and disposition costs, including real estate commission and legal fees) will be held in trust by the real estate lawyer with carriage of the sale pending further court order or mutual agreement of the parties in writing;
k. A copy of this Endorsement and Order will be provided by the Applicant to the real estate lawyer with carriage of the sale of the Matrimonial Home; and
l. After completion of the sale, the parties are directed to attend at 361Mediate to attempt mediation of the outstanding issues, including the distribution of the net sale proceeds held in trust by the real estate lawyer. The mediation session should occur before the scheduled Settlement Conference, if possible.
[57] The parties have leave to bring a motion in relation to the distribution of the net sale proceeds from the Matrimonial Home.
[58] If the parties cannot agree on costs, the Applicant shall deliver her costs outline and written submissions within 10 days, and the Respondent shall deliver his costs outline and responding written submissions within 10 days thereafter. The written submissions shall not exceed 3 double spaced pages each and are to be delivered, with the cost outlines, to my judicial assistant.
Justice S. Vella