COURT FILE NO.: FS-21-0010052-00 DATE: 01 12 24 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NASSER, Tahera, Plaintiff AND: NASSER, Mustafa Muhammad Taki, Defendant

BEFORE: Justice R. Mandhane

COUNSEL: Self-Represented, for the Plaintiff Van Der Berg, C., for the Defendant

HEARD: September 22, 2023

Motion ENDORSEMENT

INTRODUCTION

[1] The parties were married on November 14, 1975 and separated on June 25, 2020. Both the parties are retired. They have two adult children who are independent.

[2] The Respondent brings a motion for sale of the matrimonial home, and that the proceeds of sale be held in trust. The parties own the home as joint tenants. It is mortgage-free and worth somewhere between $700,000 and $1.1 million dollars. The Respondent does not currently contribute towards the maintenance and upkeep of the home. The Applicant is retired, receives pension income, and also has about $123,000 in savings.

[3] The Respondent left the matrimonial home on June 25, 2020 due to ongoing conflict in the home. He says that he requires equity from the home to fund his day-to-day living expenses because he is retired an only in receipt of government benefits. While the Respondent does receive any government benefits, I note that he also has in excess of $600,000 in savings and drives a Porsche.

[4] The Applicant resists the sale of the home and asks for exclusive possession.

ANALYSIS

[5] As a joint tenant, the Respondent is prima facie entitled to partition and sale of the home. However, a motion for partition and sale will not proceed where it can be shown that such a motion will prejudice the rights of either spouse under the Family Law Act, R.S.O. 1990, c. F.3, or if the party seeking the sale has been malicious, vexatious or oppressive in pursuing the sale.

[6] The Applicant refuses to list the home for sale and seeks an order for exclusive possession. She says that listing and selling the home would be in breach of a previous court order and that the proceeds are required to secure a future order of equalization. She says that she should be granted exclusive possession pending trial based on the parties’ relative financial positions and the hardship that would be caused if she were to be forced to move out.

[7] First, the Applicant relies on Justice Bloom’s order to resist the sale. On June 3, 2022, the Justice Bloom ordered that the Respondent to pay $1500 in monthly spousal support, and that he “not proceed with his motion for partition and sale of the matrimonial home, namely 126 Harold Street in Brampton, ON, scheduled to be heard on July 8, 2022, pending mediation of mediation/arbitration, and such date shall be vacated.”

[8] The Applicant says that ordering the sale of the home would be a breach of Justice Bloom’s order. I disagree. The Respondent abided by the order insofar as he did not proceed with the motion for partition and sale of the matrimonial home scheduled for July 8, 2022. While the parties agree that mediation/arbitration never took place, there was insufficient evidence before me regarding the cause of the same. In any event, Justice McGee ordered that this motion proceed, which supports my view that entertaining a motion for partition and sale at this time does not breach Justice Bloom’s order.

[9] Second, the Applicant says that the proceeds of sale may be required to secure equalization, and that she may even be entitled to an uneven distribution of funds. While this may all be true, given that the entirely of the proceeds will be held in trust, I do not see there being any risk that the funds will be somehow depleted or otherwise not be available for the purposes of equalization.

[10] In terms of her argument for exclusive possession, I do not accept that the Applicant will be unable to find housing if the house is sold. She is receiving spousal support and pension income totaling about $3600 per month. She is also eligible for CPP and OAB but has not yet applied for the same. While her rent will be higher than the current cost of maintaining the home, the same can also be said for the Respondent who is currently paying rent and has no access to use of the home or the equity. While the Applicant does not have as favourable a financial position as the Respondent, she has significant savings and no dependents. Therefore, I am confident that she will be able to find housing if the home is sold.

[11] In all the circumstances, I am prepared to order the sale of the home. That said, I am not prepared to order that the sale proceed without the involvement of the Applicant (see below).

ORDER

[12] The matrimonial home shall be listed for sale within 60 days. The requirement for Applicant’s consent to sell the home shall be dispensed with. Both parties shall cooperate fully with the listing and sale of the matrimonial home.

[13] The parties shall endeavor to agree on a listing agent within 15 days. If the parties are unable to agree on the listing agent, the Respondent shall provide the Applicant with a list of three agreeable agents and the Applicant shall choose one of them. If the parties are unable to agree on a listing agent within 30 days, the Respondent shall make the decision without the Applicant’s consent.

[14] The Applicant shall maintain the matrimonial home in good condition until its sale. The Applicant shall remove her property from the matrimonial home as required to facilitate the sale.

[15] The proceeds of sale shall be held in trust by the parties’ real estate solicitor pending further written agreement or court order.

[16] The Applicant shall pay costs of $5000. The Applicant has taken unreasonable positions in her efforts to resist sale of the home. This motion was not nearly as complicated as her voluminous materials would have suggested.

[17] I am not seized.

MANDHANE J. Released: September 22, 2023