Court File and Parties

Court File No.: FS-17-13136 Date: 2024-09-18 Superior Court of Justice - Ontario

Re: Sharon Roxanne Warus, Applicant And: Nicholas John Warus, Respondent

Before: Justice S.K. Stothart

Counsel: Jerome Gardner, Counsel, for the Applicant Krista Fortier, Counsel, for the Respondent

Heard: August 8, 2024

Endorsement

[1] The respondent, Nicholas John Warus, has brought a motion seeking the partition and sale of the former matrimonial home prior to trial. He also seeks the return of a number of items that he says belong to him that are within the matrimonial home.

[2] The applicant opposes the motion, maintaining that the partition and sale of the home will prejudice her in the family proceedings. She also disputes the ownership of some of the items sought by the respondent.

Background

[3] The parties were married on May 1, 1982, and separated on a final basis on June 23, 2017. The applicant commenced family proceedings in November 2017. The parties have now been separated for over seven years.

[4] The matrimonial home is owned by both parties as joint tenants. There are two lines of credit secured against the home in the amount of $14,000 and $60,000.

[5] Following separation, the applicant remained in the matrimonial home. The respondent paid spousal support, made interest payments on the lines of credit, and paid the carrying costs of the matrimonial home including property taxes, and utilities. In April 2023 the parties agreed to increase the spousal support payments and the applicant agreed to take over payment of the interest on the lines of credit and the expenses for the home.

[6] The parties are both near retirement age. The respondent will turn 65 on September 21st of this year and plans to retire. The applicant turned 65 last year. The children of the marriage have all grown and are independent.

[7] The family proceedings have been prolonged for a variety of reasons and the parties have been unable to agree on several issues including: (a) whether the respondent owes retroactive and retrospective spousal support; (b) whether the applicant should pay occupation rent for the time she has lived in the matrimonial home; and (c) the equalization of net family property, in particular the equalization of the respondent’s two pensions.

Position of the parties

[8] The respondent is in the process of planning his retirement. He wants to purchase a home before he retires because his income will decreases substantially following retirement. The respondent wants to purchase the property he is currently renting, however has been advised that he does not qualify for a mortgage because he remains on title to the matrimonial home and is jointly responsible for the secured line of credit.

[9] The respondent proposes that the matrimonial home be sold, the line of credits paid off, and the remaining proceeds remain in trust until the issues surrounding equalization are resolved. The respondent acknowledges that the applicant will probably receive the majority of the equity in the matrimonial home when the family property is ultimately equalized.

[10] The respondent submits that the parties are not close to a resolution or a trial in this matter. He submits that given the significant delay in the family proceedings, and his plan to retire, he will be prejudiced in his ability to purchase a home if the issue of the partition and sale of the home is not addressed prior to trial.

[11] The respondent also seeks a number of items that are still in the applicant’s possession, which are set out in his affidavit.

[12] The applicant wants to keep the matrimonial home. She does not want to sell it and intends to seek an order pursuant to s. 9 (d)(i) of the Family Law Act, R.S.O. 1990, c.F.3 as am., that the matrimonial home be transferred to her in order to satisfy the equalization order made in this case. She submits that she will be prejudiced if an order is made for partition and sale prior to the trial or final order in this matter settling all financial issues between the parties.

[13] The applicant agrees to the return of the items listed by the respondent with the exception of the two Rolling Stones pictures. The applicant proposes that respondent take the Keith Richard’s photograph and she will keep the Mick Jagger photograph.

The applicable legal principles

[14] The law regarding the partition and sale of a matrimonial home are well settled and are summarized succinctly in Ricketts v. Ricketts, 2024 ONSC 206 at para. 12.

[15] A property owner has a prima facie right to an order for the partition and sale of property held with another joint tenant. A court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made. Generally, a party opposing the partition and sale of jointly owned property must show malicious, vexatious, oppressive conduct relating to the partition and sale issue in order to avoid the sale: Silva v. Silva [1990] O.R. (3d) 436 at page 5; Ricketts v. Ricketts at para.12; Partition Act, R.S.O. 1990, c.P.4, section 2.

[16] When the property consists of an interest in a matrimonial home and where substantial rights arising in the family proceedings are likely to be jeopardized by an order for partition and sale, the matter should be deferred until those rights are decided under the Family Law Act: Silva v. Silva, at page 6 and 8; Goldman v. Kudeyla, 2011 ONSC 2718 at para. 17.

[17] In determining whether an order should be made for the sale of the matrimonial home, the court should first determine whether the opposing party has established a prima facie case that he/she is entitled to a competing interest under the Family Law Act. If not, then the right to sale prevails: Goldman v. Kudeyla, at para. 18.

[18] If a prima facie case is established for a competing family law interest, then the sale should be denied, unless the moving party can demonstrate that the sale would not prejudice the rights of the opposing party: Goldman v. Kudeyla, at para. 18.

Analysis

[19] In this motion the sole issue is whether the sale of the matrimonial home may prejudice the applicant’s potential request pursuant to s. 9 of the Family Law Act that the home be placed in her name in order to satisfy any equalization award owed to her, or support owed to her.

[20] Section 9 of the Family Law Act is an enforcement provision that provides a mechanism whereby if a party does not comply with an equalization award or support order, a party may seek to have the matrimonial home conveyed to them in order to meet the amounts owing.

[21] In this case the respondent agrees that the applicant will be entitled to most of the equity in the home and agrees that the net proceeds of the home be placed in trust until the family proceedings are completed. As such there is little risk to the applicant that she will be unable to access the net proceeds to fulfill any potential equalization award or support award.

[22] Absent consent, or an agreement as to price, a spouse does not have a special right to purchase the matrimonial home. While a matrimonial home occupies a special and separate place in the statutory scheme established by the Family Law Act, once the matrimonial home is ordered to be sold, each spouse is entitled to receive fair market for his or her interest in it: Martin v. Martin (1992), 8 O.R. (3d) 41 (Ont.C.A.) at para. 28 and 38; Willemze-Davidson v. Davison (1997), 98 O.A.C. 335 (Ont.C.A.) at para. 26.

[23] While I appreciate that the applicant wishes to keep the matrimonial home, absent consent or an agreement as to price, she does not have a substantial right to the home itself.

[24] In this case, the respondent wishes to be off title and relieved of the joint debts secured by the property so that he can move on with his life. I am satisfied that requiring him to remain on title until the family proceedings have completed would prejudice his ability to purchase his own home. As noted in Silva v. Silva, at page 8, one spouse should not be permitted to hold the house hostage until all claims have been adjudicated.

[25] These proceedings have gone on for an exceptionally long period of time and it is unlikely that a trial date will be obtained in the near future.

[26] The respondent agrees that the net proceeds (or his portion of the net proceeds) from the sale be placed in trust, pending a final determination on the issues of support and equalization. Given these circumstances, I find that there is no risk in this case that the respondent’s portion of the equity in the home will be unavailable to the applicant to satisfy any final order with respect to equalization or spousal support, if the respondent refuses to satisfy that order. The remedy in s. 9 of the Family Law Act applies only if the opposing party fails to meet the amounts owing.

[27] On all of the evidence provided, I am not satisfied that the applicant has demonstrated that her family law claims will be unfairly prejudiced by an order for partition and sale, provided that the net proceeds of the sale are held in trust subject to any further agreement between the parties or further order of the court.

[28] With respect to the items to be returned, I do not see the return of the Rolling Stones pictures to be so pressing that it needs to be dealt with by way of a pre-trial motion based on competing affidavits as to ownership. The issue of ownership of those pictures can be dealt with at trial.

Conclusion

[29] For the reasons set out above, I am satisfied that the court should order the matrimonial home sold, the joint lines of credit to be paid off from the proceeds, and that the net proceeds be held in trust, subject to an agreement reached between the parties or a further order of the court.

[30] I am prepared to make an order for the return of the items listed in the respondent’s affidavit at paragraph 15, with the exception of the Rolling Stones pictures.

[31] As such I make the following orders:

a. The matrimonial home, municipally located at 101 Claudia Court, Sudbury, Ontario, shall be partitioned and sold; b. The property shall be listed for sale within 45 days with a mutually acceptable real estate agent; c. If the parties cannot agree on the listing price, the property shall be listed at the price recommended by the real estate agent; d. Any outstanding debt secured by the property shall be paid using the proceeds from the sale of the house; e. Any remaining net proceeds shall be held in trust by a mutually agreeable lawyer, subject to any agreement between the parties or further court order; f. The applicant shall return the following items to the respondent forthwith: i. Chilli poster; ii. Sweat lodge Native painting; iii. A last supper Native framed print; iv. Photos of Saskatchewan and New Brunswick; v. Glass insulators; vi. Plastic packer box; vii. Remaining clothes; viii. Homemade Christmas tree stand; and ix. Barbeque

Costs

[32] If the parties cannot agree on the issue of costs, the respondent shall serve and file written submissions on the issue of costs, no longer than 2 pages, within 15 days of the release of this decision.

[33] The applicant shall serve and file written submissions on the issue of costs, no longer than 2 pages, within 15 days of receipt of the respondent’s costs.

[34] If the court does not receive written submissions on the issue of costs within 45 days of the release of this decision, the issue of costs related to this motion shall be deemed to have been disposed of.

The Honourable Madam Justice S.K. Stothart Date: September 18, 2024