COURT FILE NO.: FS-21-77 DATE: 2024/09/20

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Sherri Lynn Romain Applicant

– and –

Walter Kennedy Respondent

COUNSEL: R. Leckie, for the Applicant K. Klein, for the Respondent

HEARD: April 5, 2024, April 9, 2024, May 30, 2024, and July 25, 2024

REASONS FOR DECISION ON MOTION

Ellies J.

OVERVIEW

[1] The Respondent, Walter Kennedy, moves for an order for partition and sale of his interest in a home formerly occupied by him and the Applicant, Sherri Romain.

[2] The motion arises in the context of an application by Ms. Romain for support under the Family Law Act, R.S.O. 1990, c. F.3. It raises some interesting issues. The home in question is not owned jointly by the parties. Rather, it is owned only by Ms. Romain. Therefore, the Partition Act, R.S.O 1990 c. P.4, does not squarely apply. [1] In addition, because the parties are not married and the home in question is located on First Nations land, the provisions of the Family Law Act relating to matrimonial homes also do not apply: Derrickson v. Derrickson, [1986] 1 S.C.R. 285 (S.C.C.).

[3] Instead, Mr. Kennedy relies on the common-law doctrines that impose trusts in certain circumstances and on the provisions of a law applicable to those living on Nipissing First Nation (“NFN”) land, to which I will come to shortly.

[4] Although the motion presents an interesting legal issue, for reasons I will explain, it is my view that this issue should not be dealt with in a motion. Rather, because of the highly conflicting nature of the evidence as to the contributions of each party to the construction and maintenance of the matrimonial home, I believe this is not a case that should be dealt with on what is, in essence, a motion for partial summary judgment.

BACKGROUND

[5] The following background facts are taken from the Application, the Amended Answer, and the affidavits filed on the motion. Many of the facts are hotly contested. In this section of my reasons, I will try to set out the least controversial of these facts in order to provide some context for the issues to be decided.

[6] The parties began living together in or about September 2008. They first lived in the Sudbury area. In or about 2015, the parties moved into the residence in question which, as indicated earlier, is on NFN land, located not far from North Bay.

[7] The Applicant is a member of the NFN Band. The Respondent is not. Under s. 90(2) of the Indian Act, R.S.C. 1985, c. I-5, only Band members can own land on a reserve. The lot on which the home was built, therefore, is in the name of the Applicant only.

[8] The parties never married and had no children. They lived together in the residence until the Respondent moved out in 2020, although it appears that the parties separated some months before Mr. Kennedy left the home.

[9] In May 2021, Ms. Romain commenced an application in which she seeks support and exclusive possession of the matrimonial home. In his Answer to the Application, Mr. Kennedy seeks, among other things, a declaration that he has an equitable interest in the home and a declaration that Ms. Romain holds that interest in trust for him. Mr. Kennedy asserts that he contributed to the construction of the home by paying for such things as clearing the land, buying building materials, building the house, and paying for a drilled well.

[10] Ms. Romain denies most of Mr. Kennedy’s allegations. For example, she deposes that she and her mother were the ones who cleared the lot and that she paid for the building materials. Ms. Romain also alleges that Mr. Kennedy wrongfully withdrew approximately $30,000 from a joint bank account at the time of separation, $15,000 of which she claims is hers.

[11] In the Notice of Motion, Mr. Kennedy seeks an order for the sale of the matrimonial home. In the alternative, Mr. Kennedy seeks an order that Ms. Romain pay him one half of the value of the home. Although Mr. Kennedy brought the motion under s. 28 of the Family Homes on Reserves and Matrimonial Interests or Rights Act, S.C. 2013, c. 20, at the outset of the motion, it was agreed by the parties that that Act does not apply to the matrimonial home in this case because the NFN Band passed a law in 2007 entitled the Nipissing First Nation Matrimonial Real Property Law (the “Matrimonial Real Property Law”). Under the Matrimonial Real Property Law, unlike the Family Law Act, unmarried “common law” spouses are given certain rights regarding matrimonial homes on NFN land, including the right to ask this court to partition and sell their interest in the home.

[12] Both parties agree that they are “spouses” and that the home in question is a “matrimonial home” within the meaning of the Matrimonial Real Property Law. However, only Ms. Romain is a member of the NFN Band. The issue, therefore, is whether the Matrimonial Real Property Law permits the court to order that a matrimonial home owned by an NFN Band member spouse can be partitioned and sold at the request of the other, non-member, spouse.

[13] On behalf of Mr. Kennedy, Ms. Klein submits that the Matrimonial Real Property Law permits the court to make such an order without regard to who owns the home. On behalf of Ms. Romain, Mr. Leckie submits that law does not allow an interest in a matrimonial home to be partitioned or the home to be sold where the home is not owned by both spouses, which is not the case here because Mr. Kennedy cannot have an ownership interest in the home.

[14] Notwithstanding the position taken on behalf of Ms. Romain, counsel for both parties encouraged the court to decide the legal issue raised in this motion. They submit that it will help their clients to understand their rights as it relates to the matrimonial home. However, they concede that, even if the court agrees to decide the legal issue involved in the motion, the case must still proceed to trial to determine the extent of Mr. Kennedy’s interest, if any, in the matrimonial home.

ISSUES

[15] This motion gives rise to two issues:

(1) Is this a case in which the court should decide the legal issue raised on a motion? (2) If so, what should the decision be?

ANALYSIS

Is this a case in which the court should grant partial summary judgment?

[16] The words “summary judgment” appear nowhere in the Notice of Motion in this case. The notice simply asks for an order for the sale of the home or for an order requiring Ms. Romain to pay Mr. Kennedy one half of the value of the home. However, as counsel for Mr. Kennedy concedes, there is no question that what is really being sought is an order for partial summary judgment.

[17] Motions for summary judgment in family matters are governed by r. 16 of the Family Law Rules, O. Reg. 114/99. Like the corresponding civil rule, r. 16(6) requires the court to grant summary judgment where there is no genuine issue requiring a trial. Where the issue is a question of law, r. 16(8) requires the court to decide the issue and to grant judgment accordingly. Rule 16(12)(a) also permits the court to decide a question of law before trial. However, rule 16(8) requires that there be no other issue requiring a trial before judgment can be given and r. 16(1)(a) requires that the decision “dispose of all or part of a case, substantially shorten the trial or save substantial costs”. This is simply not the case here.

[18] As Mr. Leckie points out, even if the Matrimonial Real Property Law provides Mr. Kennedy with the means of securing and realizing his interest in the matrimonial home, the extent of that interest, if any, must still be determined at a trial.

[19] Our Court of Appeal has repeatedly cautioned against granting partial summary judgment. In Butera v. Chown Cairns LLP, 2017 ONCA 783, the Court of Appeal held that the decision of the Supreme Court of Canada in Hyrniak v. Mauldin, [2014] 1 S.C.R. 87, which re-wrote the law on summary judgment, did not affect the law on partial summary judgment. In Butera, the Court of Appeal highlighted the problems associated with partial summary judgments, including the risk of duplicative or inconsistent findings of fact, delay, additional expense, and increased demands on limited judicial resources.

[20] More recently, in Truscott v. Co-operators General Insurance Company, 2023 ONCA 267, the Court of Appeal repeated its warning. On behalf of the court, Gillese J.A. wrote, at para. 54:

Partial summary judgment is a rare procedure, reserved for issues that may be readily bifurcated from those in the main action, and that may be dealt with expeditiously and in a cost-effective manner: [citing Butera]. Partial summary judgment should be granted only in the clearest of cases and only if doing so does not give rise to any of the associated risks of delay, expense, inefficiency, and inconsistent findings.

[21] While these cases were decided in the context of purely civil proceedings, the same concerns arise in family law cases.

[22] On behalf of Mr. Kennedy, Ms. Klein urges me to consider the primary objective of the Family Law Rules, set out in rr. 2(2) and (3), namely “to enable the court to deal with cases justly”, including saving time and expense. However, this is also the objective of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provide in r. 1.04(1) that they “shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”. In my view, the admonitions of the Court of Appeal in Butera and subsequent cases cannot be distinguished on the basis of any difference in the rules relating to family, as opposed to civil, cases.

[23] The objectives of fairness and proportionality common to both sets of rules are at the very heart of the Court of Appeal’s concerns about granting motions for partial summary judgment. Unless they involve issues which are clearly severable from the other issues in a proceeding, partial summary judgments not only waste time and money, but they can actually pose a threat to the timely and effective disposition of the proceeding overall.

[24] All of these problems with partial summary judgments are present in this case. The motion itself has occupied roughly two days of court time, including the viva voce evidence of Catherine McLeod, the Land Manager for the NFN. A decision whether the Matrimonial Real Property Law allows Mr. Kennedy to obtain an order for the partition and sale of the matrimonial home in this case will not determine whether he has an interest in the home, nor whether it should be sold to satisfy that interest. Even if it is determined that Mr. Kennedy has an interest and that partition and sale may be available, such a result is not always inevitable: Rainville v. Walsh, 2021 ONSC 446, at para. 11.

[25] In these circumstances, I do not believe that this is an appropriate case in which to grant partial summary judgment. As a result, I need not consider what that judgment should be.

CONCLUSION

[26] For the foregoing reasons, the motion is dismissed.

[27] If the parties cannot agree on costs, written submissions, limited to five typewritten pages, exclusive of attachments, may be made as follows:

(1) on behalf of Ms. Romain, within 20 days of the date of these reasons; and (2) on behalf of Mr. Kennedy, within 10 days after the receipt of Ms. Romain’s submissions.

M.G. Ellies J.

Released: September 20, 2024

[1] In her supplementary factum filed on behalf of Mr. Kennedy, Ms. Klein submits that an order can be made under the Partition Act even where the moving party has no legal title to the property in question. However, this point was not argued during the motion. In any event, given the reasons that follow, I have concluded that this issue should not be determined at this stage.