Court File and Parties

Court File No.: 873/20 Date: 2024-01-10 Superior Court of Justice - Ontario

Re: Vincent Ricketts, Applicant And: Diana Ricketts, Respondent

Before: The Honourable Mr. Justice A. Pazaratz

Counsel: Guy Hunter, Counsel (Agent), for the Applicant Fareen Jamal and Kathleen Broschuk, Counsel, for the Respondent

Heard: January 5, 2024

Endorsement

[1] This motion was filled with urgent issues, not only as between the parties but also involving counsel personally.

[2] As between the parties: a. The Respondent mother brought an urgent motion basically involving two headings: i. Immediate sale of the jointly owned matrimonial home. ii. Striking the Applicant father’s pleadings as a result of a failure to comply with a disclosure order.

[3] The personal issue involved Guy Hunter, counsel contacted by the father to respond to the urgent motion. a. The mother characterized her motion as urgent because the bank is imminently going to foreclose on the property. As a result, she said she had no alternative but to bring her motion over the Christmas season. b. Sadly, over the Christmas season Mr. Hunter had a serious medical emergency in his family, resulting in his child being hospitalized for 11 days, with ongoing treatments and complications thereafter. c. Mr. Hunter requested an adjournment of the motion because his preoccupation with family matters had prevented him from preparing on behalf of the father. Those family issues were ongoing, so any adjournment would have to be at least for a couple of weeks (potentially longer). Mr. Hunter was not going on record and only attended at the hearing of the motion for the sole purpose of requesting an adjournment. d. Counsel for the mother showed professional courtesy in immediately agreeing to adjourn the non-urgent issues (the Rule 1(8) claims, and a determination of the distribution of sale proceeds, if the house is sold). But counsel for the mother opposed any adjournment of the issues related to partition and sale. e. When I advised Mr. Hunter that the longest possible adjournment I could consider would be one week, Mr. Hunter advised that a one-week adjournment was not sufficient given counsel’s family responsibilities. f. Fortunately, even before Mr. Hunter became involved, the father had served and filed his own lengthy affidavit in response to the mother’s materials. Mr. Hunter conferred with the father and they agreed that the father would represent himself at the motion, and Mr. Hunter would remain in attendance to assist him as required.

[4] (The court expresses gratitude to Mr. Hunter for his professionalism in attempting to assist the father despite compelling personal family issues. But at the end of the day Mr. Hunter bowed out. The work we do is important. But not more important than our own families. )

[5] The parties have already had a case conference resulting in a June 20, 2023 temporary order requiring the father to produce extensive disclosure. a. The mother’s motion to strike the father’s pleadings (or stay his participation until he complies with the order) was based on her allegation that numerous items of disclosure remain outstanding. b. In his affidavit the father denied any non-compliance with the disclosure order. c. As stated, the mother’s counsel agreed that this issue was not “urgent” and will be dealt with at a later date.

[6] We proceeded with the remaining claims in the mother’s December 18, 2023 motion, which included:

3. An order that the Applicant shall provide the Respondent with all correspondence received from all lenders associated with 49 Tulip Drive, Brampton, Ontario ("Matrimonial Home"), in particular the Bank of Nova Scotia/ Scotiabank and Rajinder Singh Pahal, from January 1, 2021, and ongoing until the sale of the Matrimonial Home.

4. An order that the Matrimonial Home shall be sold pursuant to section 9(1)(d), 10(1)(c) and/or 23(b) of the Family Law Act and sections 2 and 3(1) of the Partition Act.

5. An order that the Matrimonial Home shall be released from the application of section 21 and 23 of the Family Law Act such that: a. The Applicant's consent to the sale of the Matrimonial Home is hereby dispensed with. b. The Respondent shall have the sole authority for the listing of the property for sale using a real estate agent and real estate solicitor of her choice, determining the listing price and accepting a reasonable offer without the consent of the Applicant for the purpose of completing the sale and disposition of the property. c. The Applicant's signature shall not be required for any step of the sale including, but not limited to: the listing agreement; offer, counter offer, and acceptance of agreements (including any and all schedules); and closing documents (including but not limited to discharging the mortgage, paying outstanding property taxes, and releasing funds per Court Orders). d. Neither party shall further encumber the Matrimonial Home.

6. An order that the Respondent shall have exclusive possession of the Matrimonial Home pending closing of the sale.

7. An order that the Respondent may bring a motion on 48 hours' notice regarding the listing or sale of the Matrimonial Home, if required.

[7] The mother’s December 18, 2023 affidavit included the following narrative: a. The parties commenced cohabitation September 8, 2008. They married on September 25, 2008. They separated on July 6, 2020 as a result of the father’s family violence. b. The parties have two children ages 14 and 12. c. The father was verbally, physically and financially abusive to the mother during the relationship. She sets out various examples of aggressive behaviour. d. The mother works part-time as a cashier at Tim Hortons. In 2022 she earned $29,650.00. But she was recently reduced to two shifts per week, so her income has decreased. e. The father worked as a personal support worker for 22 years. He now runs a Hamilton restaurant called Pagoda. He owns the building and the restaurant. He claims he makes nominal income but he has not provided disclosure to verify this. He is intentionally underemployed, and hiding cash income from the restaurant. f. In 2019 the father tried to forge her signature to get a loan against the matrimonial home in Brampton. g. In May 2020 he purchased Pagoda using equity from the matrimonial home. He forced the mother and the children to move into the basement of the Hamilton restaurant, which was inappropriate and an unhealthy accommodation. h. The mother subsequently decided to return the children to the matrimonial home while the father was away. He reacted angrily because he wanted to rent the home out. He returned the children to the cold, damp, mouldy basement of Pagoda. The mother initially accompanied him because she had nowhere else to go. i. Separation occurred July 6, 2020 after the father berated the mother over a slice of cheese. The mother could not take it anymore. After separation she could not return to the Brampton matrimonial home because the father had rented it to a third party. She could not remain at the Hamilton restaurant due to the family violence. The mother then rented a small room in Mississauga from a friend at her church. She continues to reside there. j. In December 2022 the father pressured the mother into co-signing a private loan for $350,000.00 in favour of a private lender, Rajinder Singh Pahal, securing Pagoda as a first charge and the matrimonial home as a second charge. The father and his ex-wife pressured the children to convince the mother to agree. The mother signed the documents as she felt she had no choice. k. One week later he asked her to co-sign another loan but she refused. In retaliation, in January 2023 the father served the mother with an amended Application – even though the amended Application had been issued six months prior on July 5, 2022. The original Application appears to have been issued on September 18, 2020, but the mother was never served with that Application. l. On June 20, 2023 Justice Bale ordered the father to produce significant disclosure. He has not produced much of the required information, making it impossible for the mother to address the financial issues, including calculation of equalization. m. The father has been secretive about the house and finances in general. n. The father is renting out the home. In September 2023 the mother attended and learned from a basement tenant that they pay $1,500.00 per month rent. She understands he is renting the upstairs unit for $2,700.00 per month. o. He told the mother he was using this rental income to pay the mortgage. But the mother recently discovered that the mortgage has not been fully paid since August 4, 2023. There were $15,708.63 arrears as of December 14, 2023. The bank had been sending warning letters to the matrimonial home and to the father’s restaurant, but he didn’t share any of that information with the mother. p. The father eventually advised the mother that Scotiabank is taking enforcement action. But he refused to provide the mother with the correspondence he received from the bank. It took her some time to piece together the financial mess which the father had created. Eventually she obtained information directly from the bank. q. The father has ignored emails from the mother’s lawyer asking for bank information and for a sale of the home. He responded with a December 18, 2023 email which included. a. "I (vincent) the living man hereby do not consent to your email, I do not consent to an emergency motion in efforts sell my matrimonial home , neither do I consent to selling my home as a whole"; b. " ... I (vincent) the living man do not attorn to your jurisdiction. And we have no contract agreements pursuant to contract law failure comply with this order will result in a supreme court law suit against Jamal Family Law Professional Corporation and a private prosecution against Kathleen Broschuk in corporate and private capacity for crimes against humanity, commercial crime and human trafficking etc." r. The father is hostile and ungovernable. He is aggressive and will not cooperate with any reasonable or necessary plan. s. The jointly owned matrimonial home is the parties’ only significant asset. If the bank sells the property under power of sale, the bank will not be motivated to maximize the sale price, and the parties will net less than if they make conscientious efforts to sell it themselves. t. Neither of them can afford to retain the home, or even to bring the mortgage into good standing. The mother requires her equity to secure appropriate accommodations for herself and for the children when they spend time with her. u. The mother is also worried a bank foreclosure will damage her credit rating. v. The father will owe the mother an equalization payment. He owns Pagoda and has a pension (which he has not valued, despite the disclosure order). w. The children would not be impacted by the sale. The home has been rented to third parties for three years. The children live in Hamilton at Pagoda and attend school in Hamilton. The father claims they want to live in the home but this is untrue. The children advise that periodically the father takes them back to the home to make it look like they live there, but then he gets them up early to drive them to school in Hamilton (more than an hour away). The children have advised the mother they want to live in Hamilton near their school x. Sale of the home would not prejudice any claims under the Family Law Act. y. The mother seeks exclusive possession and authority to sell the property without the father’s consent. He has stopped making mortgage payments and doesn’t care about the financial implications. As a result the home needs to be sold urgently. z. The father has animosity toward the mother’s lawyer, alleging that the push to sell the home is from the lawyer, and not from the mother. This is not true. aa. The mother feels the father has mismanaged many of their funds. Selling their home while they still have some control over the sale is a necessary step in resolving their financial problems.

[8] The father’s December 28, 2023 affidavit included the following narrative: a. The mother is cunning and misleading the court. b. The father denies that he stopped paying the mortgage on the matrimonial home. He has been paying all along, without any contribution by the mother. c. The mortgage was initially a variable rate. When rates were increasing the father asked the mother to consent to lock in to a fixed-rate mortgage, but the mother refused several reasonable proposals. d. The father only rented the home from August 2021 to August 2022, for one year after the mother walked out and left the children with the father. e. Since August 2022 the property has been under renovations. f. The father never rented the upstairs. The basement has not been rented since August 2022. g. The father used the rental income to pay house expenses. h. The arrears owing as of December represent the arrears accumulated from October, November and December 2023, due to the higher interest rates. The father asked the mother to assist with payments, but she refused. i. It is unjust to force the sale of the home where the children should be living. j. The father categorically denies the mother’s allegations of violence, and the various examples she gave. k. The mother has used the allegation of violence to obtain an advantage in court. She went to a women’s shelter as a tactic to obtain government housing after leaving the marriage. l. The father denies forcing the mother to move into the basement of Pagoda. The purchase of the restaurant was a family decision because it was a good investment. Both parties agreed the family would temporarily stay in the basement of the restaurant so the children could go to school in Hamilton until a better Hamilton residence could be found. This was while the father was still working at his full-time job. m. It is superficial to say the parties separated over a disagreement about a slice of cheese. The mother moved out in July 2020 and the father then rented out the home out of financial necessity. n. The mother refuses to accept any responsibility. She is content to leave the children with the father. o. The mother willingly agreed to sign the private loan after the father explained that without the loan the children would have nowhere to live. p. The father issued a family court Application but delayed serving it because he hoped to spare the children from the emotional upheaval of a family court case. Ultimately he accepted that separation was permanent, so he served the issued Application. q. The father has provided adequate disclosure. If it has not been provided it does not exist or is not available to the father. r. The children stay in Hamilton with the father and attend school in Hamilton because the father has no alternative. Periodically they spend time at the Brampton home for a few days, but the property is still under major renovations. s. It is in the best interests of the children to live in their own house. They have advised the father they want to return to Brampton to live and attend school. t. The father intends to return the children to Brampton. u. The mother still lives in Mississauga. She has made no effort to move closer to Hamilton to be with the children.

[9] The mother’s January 3, 2024 reply affidavit included the following narrative: v. On January 3, 2024 she received a Notice of Sale dated December 15, 2023 and a demand letter dated November 21, 2023 issued by the bank. She was not able to obtain these documents earlier, as a result of complications in communicating with the bank. The father had refused to provide these documents even though they were in his possession. w. Scotiabank says the property will be sold if the mortgage is not paid in full by January 22, 2024. The bank is demanding $510,815.54. x. The second mortgage to Pahal is for $350,000.00. y. Even if the property is listed before January 22, 2024, the bank may still take enforcement action. z. The mother hopes that if she can show the bank that the property is now for sale, they will give her some time to sell.

[10] To demonstrate how unreasonable and uncooperative the father has been, the mother also included with her materials an email the father sent to the mother’s lawyer on December 19, 2023 at 6:11 a.m.(reproduced as sent):

Ms Broschuk,

Kathleen Broschuk you are very disrespectful and I don't owe you any obligation please refrain from sending me emails. I am not your co-workers neither am I your client. Most and foremost i cannot communicate with dead entities. I already declared I am vincent the living man executor and beneficiary for the estate: RICKETTS.

If there's any further correspondence it should be done by registered mail. Any Further email from you or the establishment doing as Jamal Family Law Professional Corporation. will considered undelivered

in respect to CANADIAN LAW, The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Section 35 of the convention constitution act of 198 honour and affirmed my treaty rights as a heirs to land, Indian not tax,

North American indigenous Indian.

Kathleen Broschuk You are an employee of Westminster by holding an Ontario bar association number known as a licence permit (permission), you are binded by the constitution for the united state of 1789.

Westminster and all its franchised, public officials and public servants sworn on oath under penalty of perjury to operate in good faith and honour the common law. please refer to article 6 of the constitution for the United States of 1789

Kathleen Broschuk You have no jurisdiction in this matter, Kathleen Broschuk You are manipulating my wife for your own personal benefits you are not looking out for her best interests. why don't you tell her that if the house is sold there's no money in it for her to get all the money would be gone to the bank and the private lender and other loan sharks that I've borrowed money from where I pledged the house as collateral. Kathleen Broschuk you see my wife as a meal ticket and you preying on her incompetence in efforts to line your packets.

Kathleen Broschuk this your final warning to back down!. Canada is a corporate state operating as a colony by you saying you are following Canadian laws which doesn't exist. Canada constitution run from 1867 to 1982 it is now expired Canada is under colonial operation which means you're committing terrorism, fraud, High treason, human trafficking and crime against humanity. I already declared I am a living man, not a thing, parson, corporation or a fictitious entity, 14th Amendment corp etc. the administration court have jurisdiction over things, entities and corporations. I hereby do not attorn the jurisdiction of the court. and I will not participate in any commercial activities in REM'S admiralty maritime, human trafficking jurisdiction.

Failure to cease and desist your colonial activities against my estate : RICKETS you will be served a civil law suit from a court of competence common law venue. By my agent and you Kathleen Broschuk will have to stand liabilities in your corporate and private capacity.

Sue juris

Personam

All rights reserved

Without prejudice, without recourse : vincent

[11] Given the fact that the father had prepared his affidavit without counsel, I wanted to give the father an opportunity to expand upon his explanation of his position, after having had the benefit of conferring with Mr. Hunter. Bearing in mind the bank’s looming January 22, 2024 deadline, with Ms. Broschuk’s indulgence, I asked the father to explain whether he had any additional information in support of his objection to selling the Brampton matrimonial home. Mr. Hunter remained in attendance as the father made additional comments and submissions, including: a. In answer to the question of whether he had an actual financial plan to bring the mortgage into good standing and avoid power of sale proceedings, the father said he had hired a real estate agent to help him negotiate with the bank. But he didn’t want to discuss a specific plan. b. He said contrary to the bank’s formal Notice of Sale demanding $510,815.54, he understood the bank would be willing to accept approximately $15,000.00 to put the mortgage back into good standing. He did not present any proof that this was the bank’s position. c. When asked if he could establish that he had sufficient funds available to bring the mortgage into good standing and make ongoing biweekly payments thereafter, the father said he didn’t have any such proof, but he would continue to work on raising the funds. d. The father stated that he had signed a lease with a tenant, and the tenant was not prepared to back out of the lease, so this would be an impediment to selling the house anyway. When asked to elaborate, the father was quite vague. He said the tenant signed the lease in November 2023 and would be paying $2,800.00 per month rent. He couldn’t explain why he hadn’t mentioned this in his December 18, 2023 affidavit (and why he specifically stated in that affidavit that the property hadn’t been rented out since August 2022). He said the tenant hadn’t actually moved in or paid any money. He said he and the tenant were still negotiating things, but he couldn’t specify what they were still negotiating. He finally said the tenant would be moving in on February 1, 2024, and that’s when he’d start paying rent. e. He said he wants to retain the Brampton house so that the children can move back into it. He initially said that because he had just rented out the house, he and the children would not be able to return to the house until after the lease ended a year from now. He then modified the explanation to say that he had only rented out the top half of the house, and that he and the children intended to soon move back to the bottom of the house. f. He said there was no point selling the house because there won’t be any net proceeds anyway. g. Notably, when asked if he would cooperate if the court orders the house to be sold, the father answered “no”.

[12] In Dhaliwal v. Dhaliwal, 2020 ONSC 3971 (SCJ) this court summarized the applicable legal principles: a. Section 2 of the Partition Act empowers the court to order the sale of a jointly owned property, including a matrimonial home. McNeil v. McNeil, 2020 ONSC 1225 (SCJ). b. A joint tenant has a prima facie right to an order for the partition or sale of property held with another joint tenant. Kaphalakos v. Dayal, 2016 ONSC 3559 (SCJ); Marchese v. Marchese, 2017 ONSC 6815 (SCJ); Jama v. Basdeo, 2020 ONSC 2922 (SCJ); Davis v. Davis; Brienza v. Brienza, 2014 ONSC 6942 (SCJ). c. A court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made. Jama v. Basdeo; Steele v Doucett, 2020 ONSC 3386 (SCJ). d. The other joint tenant has a corresponding obligation to permit the sale. These are fundamental rights flowing from joint tenancy. Steele v Doucett. e. The onus is on the party who opposes a sale to establish that there is a sufficient reason, recognized in law, why the court should exercise its discretion to refuse a sale. Afolabi v. Fala, 2014 ONSC 1713 (SCJ). f. Generally, the party opposing the sale must show malicious, vexatious or oppressive conduct relating to the partition and sale issue in order to avoid the sale. Silva v. Silva (1990), 1 O.R. (3D) 436 (ON CA); Jama v. Basdeo; Steele v Doucett. g. Each case must be considered on its own facts. The court must consider all relevant factors in exercising its discretion. Davis v. Davis, [1954] O.R. 23 (C.A.); Steele v Doucett. h. In family law cases, an order under the Partition Act should generally not be made until any dispute related to the property has first been determined. Maskewycz v. Maskewycz (1973), 2 O.R. (2d) 713 (ON CA). i. The Family Law Act does not displace the Partition Act. But in family cases a partition application should generally not be granted where it can be shown that a legitimate family law claim would be unfairly prejudiced. Silva v. Silva; Parent v. Laroche, 2020 ONSC 703 (SCJ); Latcham v. Latcham (2002), 27 R.F.L. (5th) 358 (ON CA); Dulku v. Dulku, 2016 ONSC 6400 (SCJ). j. In assessing and guarding against potential prejudice, the court must take a realistic view of the potential impacts of a sale — both positive and negative — in relation to the interests of both joint tenants, and the family as a whole. Where the financial or other circumstances of the parties are such that a sale would be the inevitable result at trial, there is little justification for delaying the sale. Zargar v Zarrabian, 2016 ONSC 2900 (SCJ); Giglio v Giglio, 2015 ONSC 8039 (SCJ); Keyes v. Keyes, 2015 ONSC 1660 (SCJ). k. More to the point, where it is evident at the temporary motion stage that monthly carrying costs are currently unsustainable, it is inappropriate to indefinitely perpetuate financial hardship for the entire family. Quite commonly, house expenses which were barely affordable when the family unit was intact immediately become unaffordable once the same income has to fund two separate households. Sometimes harsh new realities need to be faced sooner as opposed to later — in order to avoid even more painful consequences such as power of sale proceedings or even bankruptcy. l. The court must consider the impact of a proposed sale on children or a vulnerable spouse -- including the emotional impact, and the fundamental need to ensure that they have appropriate housing. Delongte v. Delongte, 2019 ONSC 6954 (SCJ); Kaing v. Shaw, 2017 ONSC 3050 (SCJ). The availability and affordability of alternate housing must be considered. As part of the analysis, support obligations may need to be co-ordinated — even on a temporary basis — to ensure that any party displaced by a sale will have the resources to arrange reasonable replacement accommodation. m. Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course. Fernandes v Darrigo, 2018 ONSC 1039 (SCJ). The court must be mindful of the whole of the proceeding, and the need to achieve a final resolution for the family as fairly and expeditiously as possible. Kereluk v. Kereluk. n. Timing can be a relevant consideration in dealing with a motion for sale at a temporary stage. The availability of a trial within a short period might reduce the pressure for an immediate sale. Goldman v. Kudeyla, 2011 ONSC 2718 (SCJ). o. On the other hand, a request for sale during summer months may entail some timeliness if seasonal market opportunities are favourable; or to reduce the likelihood of a child having to change residence (and possibly catchment area) while a school year is in session. p. The stage of a child's academic progress might also be relevant. Sale might be delayed if it would allow a child to complete a certain grade level before an inevitable switch to another school. On the other hand, immediate sale might be more appropriate if the child happens to be transitioning to a new school in any event. q. But the mere existence of children in a household is not in itself a sufficient basis to oppose a sale. A generic statement that children enjoy living in their current house or that they will be unhappy if they have to move, is not sufficient. The party opposing a sale must establish a likely negative impact more serious than the inevitable adjustments and disruptions which all families face when parents decide to separate. r. A pending equalization claim may also be relevant. The court cannot compel one joint tenant to sell to the other. Martin v. Martin. Nor can it give either joint tenant a right of first refusal. Dibattista v. Menecola. But a recipient of an equalization payment may propose to set that entitlement off against their former spouse's share of the equity in the home. If a sufficiently particularized proposal seems viable -- and especially if it would benefit a child -- sale should be delayed to allow proper consideration of that option. Chaudry v. Chaudry, 2012 ONSC 2149 (SCJ). s. The court must consider and attempt to guard against potential prejudice. Are there realistic issues or claims yet to be determined on a final basis, which would be prejudiced or precluded if a property is ordered to be sold at the temporary stage?

13. The Divisional Court, in Nogueira v. Nogueira, 2021 ONSC 7564, at para. 3, recently cited Dhaliwal with approval. Urness v. McDonald, 2022 ONSC 1697 (SCJ).

14. Interim sale should not be granted where unresolved financial determinations (including equalization, spousal and child support) might leave a parent with insufficient information and resources to make informed and efficient arrangements for alternate accommodation for children. Gafanha v. Gafanha, 2022 ONSC 1613 (SCJ).

15. In Latinovich v. Ferri, 2022 ONSC 1677 (SCJ) Kurz J. stated that the analysis should not start and stop with a joint owner’s prima facie right to a sale, but rather, the court’s overriding responsibility is to safeguard the best interests of any child involved.

31 In a nutshell, while partition and sale is presumptively available at the behest of a joint owner, that principle is subject to greater discretion when the court is dealing with a matrimonial home and when the request is made at an interim rather than trial stage of the proceedings. In an interim motion, the court is called upon to engage in a holistic review of the merits of the sale, while considering the interests of each party and the children. Further the court must balance the prejudice to the claims of each party regarding the home against prejudice to the other and the advantages of sale.

32 A key point in the interim family law context is how the best interests of the children before the court, rather than an abstract notion of children in general, would be affected by sale before trial. The best interests of the children before the court may, in themselves, may be sufficient to overturn the presumption regarding partition and sale, unless other facts mandate that sale.

16. I am satisfied that with the additional indulgence provided to the father allowing him to expand upon his affidavit, I understand the positions of both parties, and the applicable principles.

17. My considerations include the following: a. As a joint owner of the matrimonial home, the mother is presumptively entitled to request that the property be sold, so that she can secure her half of the equity, and rid herself of any ongoing obligation. b. The father has not established any reasonable justification for resisting the sale. c. By the father’s own admission, despite his conscientious efforts, the property has simply become unaffordable. Interest rates have gone up. His financial statement does not set out nearly enough income to make the mortgage payments even if he and the children had no other living expenses. Similarly, his financial statement does not set out nearly enough assets to bring the mortgage into good standing. d. The father’s own materials demonstrate that his financial situation is desperate. He hasn’t had enough money to pay for needed home renovations (so he has slowly been doing the work himself). He has allowed the mortgage to fall into arrears. The home is simply unaffordable, and there is no indication that the father has any ability to turn things around and start meeting all these obligations. e. The father has allowed this financial crisis to arise because he failed to inform the mother that he was falling behind on the mortgage. He failed to share with her written notices he was receiving from the bank. On those occasions when the mother specifically requested information (after suddenly realizing there was a problem) the father continued to withhold information. f. There are no legitimate family law claims which would be jeopardized by selling the property. The mother says any equalization payment will be owing from the father to the mother (although she can’t calculate it because of non-disclosure from the father). The father does not allege he will be the recipient of an equalization payment. g. The house is unaffordable. Sale is inevitable. In reality, the only issue is whether the bank sells it in a few weeks, or whether the parties are still given an opportunity to sell the property hoping to yield a higher price. Hopefully if the bank is satisfied that the parties are actively selling the house, the bank may hold off with the Power of Sale proceeding and give them a chance to market the property. h. The father says he wants to retain the Brampton house for the children, and that they want to live there. But the children have been living in the basement of the Hamilton restaurant for the past three years, and they attend school in Hamilton. The father has been vague and inconsistent about when he would intend the children to return to Brampton. The father has not established that it is necessary or in the best interests of the children to try to delay an inevitable sale. The children would not be disrupted by a sale. They will continue to live in Hamilton and attend school here. i. The mother’s income is low. The father’s stated income is low. These parties need to reorganize their finances and rid themselves of unaffordable financial obligations, so they can move on with their lives. If there is any equity in the property, both parties should be entitled to immediately utilize their presumptive one-half entitlement. j. The determinative factor here is financial reality. The father has already demonstrated that he can’t keep up the payments. He has no specific plan to raise the necessary funds. k. I accept the mother’s concerns about the father being unreasonable and uncooperative. His aggressive (and bizarre) emails to the mother’s lawyer raise concerns about his insight and judgment. And I must consider that when asked if he would cooperate if the court orders a sale, the father unequivocally stated “no”. In the face of such open resistance and defiance, I agree with the mother that she needs to have the authority to control all aspects of a sale, in order to maximize what little time the parties have to try to sell the house.

18. My order: a. The jointly owned matrimonial home at 49 Tulip Drive, Brampton, Ontario shall be listed for sale immediately and sold pursuant to section 9(1)(d), 10(1)(c) and/or 23(b) of the Family Law Act and sections 2 and 3(1) of the Partition Act. b. The Applicant's consent to the sale of the matrimonial home is hereby dispensed with. c. The Respondent shall have the sole authority for the listing of the property for sale using a real estate agent and real estate solicitor of her choice, determining the listing price and accepting a reasonable offer without the consent of the Applicant for the purpose of completing the sale and disposition of the property. d. The Applicant's signature shall not be required for any step of the sale including, but not limited to: the listing agreement, offer, counter offer, and acceptance of agreements (including any and all schedules); and closing documents (including but not limited to discharging the mortgage, paying outstanding property taxes, and releasing funds per Court Orders). e. Neither party shall further encumber the matrimonial home. f. The net proceeds of sale after payment of registered encumbrances, outstanding taxes and legal fees, shall be held in trust pending further order. g. The Applicant shall provide the Respondent with all correspondence received from all lenders associated with 49 Tulip Drive, Brampton, Ontario, in particular the Bank of Nova Scotia/Scotiabank and Rajinder Singh Pahal, from January 1, 2021, and ongoing until the sale of the matrimonial home. h. The Respondent shall have exclusive possession of the matrimonial home pending closing of the sale. i. The Respondent may bring a motion on 48 hours' notice regarding the listing or sale of the matrimonial home, if required. j. The balance of the Respondent’s motion is adjourned without a return date, returnable on five days notice. k. If the parties are not able to resolve the issue of costs, the Respondent shall serve and file her written costs submissions by February 9, 2024; the Applicant’s response shall be served and filed by February 26, 2024; and any reply shall be served and filed by March 1, 2024. The narrative portion of costs submissions shall not exceed three pages, typed, and double spaced.

Justice Alex Pazaratz Date: January 10, 2024