COURT FILE NO.: FS-22-104214 DATE: 2024 10 22
ONTARIO SUPERIOR COURT OF JUSTICE
B ET W EE N:
CAMPBELL, Clifford G. THAKKAR, Alisha, for the Applicant (Agent) Applicant
- and -
CAMPBELL, Paulette M. DI MONTE, Patrick, for the Respondent Respondent
HEARD: October 4, 2024
REASONS FOR JUDGMENT
LEMAY J
[1] This is motion for partition and sale of the matrimonial home. The Applicant, Clifford Campbell and the Respondent, Paulette Campbell, were married on May 8th, 1983, and separated in either 2019 or 2021. Determining the date of separation is not essential for me to resolve the issue before the Court on this motion. The parties continue to reside in the matrimonial home but are living separate and apart.
[2] The Respondent brought a civil proceeding in 2021 seeking partition and sale of the matrimonial home. The Applicant responded by bringing this matrimonial proceeding, as the Applicant is opposed to the partition and sale of the home. The Applicant is 83, in ill health and suffers from kidney failure. He requires dialysis at home 12 hours a day. The Respondent argues that the dialysis can be obtained in a different location and that it is oppressive to continue to hold all of her assets in the matrimonial home, which requires her to live separate and apart under the same roof as the Applicant.
[3] For the reasons that follow, I have concluded that the house should be sold on terms as set out below.
Background Facts
a) The Parties
[4] The Applicant is, as I have mentioned, 83 years old. There was some confusion over his age at the hearing of the matter. His counsel said that he was 88 years old, while the letter that was filed from his doctor suggests that he is only 70 years old. However, given the Affidavit from the Applicant as well as the Respondent’s statement in Court that he was 83, I accept that that is his age.
[5] The medical evidence that was filed indicates that the Applicant has been diagnosed with end stage renal disease. He has been receiving peritoneal dialysis since 2019, and is currently receiving treatment in his home. The medical evidence that was filed indicates that the form of dialysis that the Applicant can receive can only be completed in his residence, as it is not available in a health care setting.
[6] The Applicant’s materials indicate that he has had dialysis treatments for a number of years and suffers from a number of other medical conditions. The Respondent has not been engaged in the Applicant’s medical care or medical issues for several years.
[7] The Respondent is 70 years old and has recently retired from her employment. She is in good health. She had worked up to some point in 2020 but has since retired.
[8] The separation date is in dispute. The Applicant alleges that he separated from the Respondent in 2019, when she stopped taking him to his appointments for his dialysis back in late 2018 or early 2019. The Applicant blames the Respondent for a worsening in his kidney condition that resulted from a series of missed appointments in that time period. Again, that is not an issue I have to determine in order to resolve this motion. Even if the Respondent is, in part, responsible for the deterioration of the Applicant’s condition, the question to be determined is whether the Applicant’s condition, as it exists as of the day the motion was argued, is a reason to prevent the matrimonial home from being sold.
[9] At this point, the Applicant has to undergo dialysis for a twelve (12) hour period every day. This is done at home, and the matrimonial home is relatively close to Credit Valley Hospital, where the Applicant has his doctors. The medical information from the doctors indicates that the dialysis treatment has to be done at home. However, it does not say that the Applicant has to live in his current home to have the dialysis treatment.
b) The Procedural History
[10] In 2019, the Applicant changed the ownership of the matrimonial home from a joint tenancy to a tenancy in common.
[11] In 2021, the Respondent served the Applicant with a Civil Application (CV- 21-4233) seeking to have the matrimonial home sold and the proceeds divided between the Applicant and the Respondent. The Applicant represented himself in that proceeding until August of 2022, when he retained his current counsel.
[12] When the Respondent brought the civil application, she sought to have the Applicant’s personal belongings removed from the house so that it could be staged for optimum price. It remains the Respondent’s position that the parties both vacate the matrimonial home prior to the sale in order to allow the real estate broker to stage it and make it presentable in order to obtain the optimum price.
[13] At that point, the Applicant commenced this family law application. He sought to have it joined with the Respondent’s Civil Application. On January 10th, 2023, Chozik J. ordered that the two applications be joined together. They have been being heard together ever since.
[14] There was some confusion over the meaning of the Order that had been issued by Chozik J. on January 10th, 2023. The Order of Chozik J. stated that the two proceedings would be joined and, in the alternative, that the civil proceeding would be stayed pending the determination of the equalization and support claims in the family law application.
[15] At a case conference held on August 23rd, 2023, Bloom J. ordered that the Applicant move under Rule 25(19) of the Family Law Rules before Chozik J. for directions as to how her order of January 10th, 2023 bears upon the bringing of a motion for sale of the Matrimonial home by the Respondent.
[16] That motion was duly brought and, on August 9th, 2024, Chozik J. issued an endorsement in which she clarified that it was not her intention to have the Respondent precluded from bringing a motion for partition and sale. Chozik J. confirmed that she had been providing a procedural direction. She also confirmed that the Respondent could proceed with her motion for partition and sale, but had to do so within the family law proceeding. The costs of the second appearance before Chozik J. were reserved to the judge determining the merits of the partition and sale motion.
[17] This motion was then argued before me on October 4th, 2024 on the merits of the Respondent’s request to have the property partitioned and sold. Technically, since the joint tenancy has already been severed, it is just a motion to have the property sold before the equalization issues are determined.
c) The Status of the Family Law Litigation
[18] The parties have no children together. The Applicant’s children are fully grown and independent. As a result, the only issues that remain in this case are financial. As far as I can tell, there is no real dispute that the incomes of the parties are broadly similar. There may be a dispute over the equalization payment.
[19] In December of 2022, the Applicant sought financial disclosure from the Respondent. The Applicant has raised two issues in respect of financial disclosure, both of which relate to the equalization payment. The first is that he alleged he received a payout from a former employer back in 1987, and he believes that the Respondent may have kept part of the money and/or is failing to disclose the account where the money has been kept. Second, the Applicant asserts that the Respondent’s pension has yet to be valued.
[20] The Respondent asserts that there is a credit line registered against the matrimonial property, and that there is at least a $47,000 debt against it. She also claims that the debts against the credit line were incurred by the Applicant. This also appears to be an issue that will need to be resolved as part of the equalization process.
[21] The total value of the house is between $1.2 and $1.3 million. The only encumbrance on the property is the credit line and, while the most recent information about that credit line shows a balance of $47,000, it has a limit of $100,000.
[22] To summarize, there are some financial issues that exist in this case. However, on the record I have before me they are limited to, at most, a change of approximately $200,000., which would result in a change in equalization of $100,000.
Issue and Positions of the Parties
[23] The issue in this case is straightforward. It is whether the Court should order the partition and sale of the matrimonial home and, if so, on what terms.
[24] The Applicant is opposed to the partition and sale of the home on the basis that he can only receive his dialysis in this home, because it is close to the Credit Valley hospital. He asserts that his health will be jeopardized if he is required to move from the matrimonial home. He also argues that the matrimonial home should not be sold before the disclosure and equalization issues are addressed.
[25] The Respondent, on the other hand, asserts that the matrimonial home should be partitioned and sold. She asserts that it is oppressive to continue to require her to live in the same residence as the Applicant. She also asserts that she is entitled to her portion of the value of the matrimonial home so that she can continue with her life. Finally, in terms of the equalization issues, she is prepared to leave $100,000 of her portion of the proceeds in Court to address any equalization issues and argues that the Applicant should do the same.
The Law and Analysis
a) The Legal Principles
[26] I begin with the applicable sections of the statutes. First, section 2 of the Partition Act, R.S.O. 199, C. P.4 states:
2 All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.
[27] In the family law context, I must also keep section 10 of the Family Law Act, R.S.O. 1990 c. F. 3 in mind. That section states:
10 (1) A person may apply to the court for the determination of a question between that person and his or her spouse or former spouse as to the ownership or right to possession of particular property, other than a question arising out of an equalization of net family properties under section 5, and the court may,
a) declare the ownership or right to possession;
b) if the property has been disposed of, order payment in compensation for the interest of either party;
c) order that the property be partitioned or sold for the purpose of realizing the interests in it; and
d) order that either or both spouses give security, including a charge on property, for the performance of an obligation imposed by the order, and may make ancillary orders or give ancillary directions
[28] In addition to these provisions, both counsel have referred me to a number of judicial decisions. I have considered all of those decisions. Generally, an owner of a property is entitled to partition and sale and, where the property is not a matrimonial home, there is a narrow standard for the Court to refuse partition and sale. Kaing v. Shaw, 2017 ONSC 3050 at para. 23.
[29] Where, as is the case here, the property is a matrimonial home, the parties are still entitled to an order for partition and sale on a prima facie basis. However, as noted in Silva v. Silva, (1990) 1 O.R. (3d) 436, “an Application under s. 2 should not proceed where it can be shown that it would prejudice the rights of either spouse under the FLA.”
[30] Both the approach that should be adopted and the meaning of prejudice is discussed in Goldman v. Kudeylka, 2011 ONSC 2718, where McGee J. stated:
[17] A property owner, whether the holder of an exclusive interest or a joint interest has a prima facie right to sale. When the property consists of an interest in a matrimonial home, that prima facie right is subject to any competing interests under the Family Law Act that would otherwise be defeated.
[18] To make a pre-trial order for the sale of a matrimonial home the court must first determine whether the resisting party has established a prima facie case that he or she is entitled to a competing interest under the Family Law Act. If not, then the right to sale prevails. If so, then the motion for sale is denied unless the selling party can demonstrate that the sale would not prejudice the rights of the resisting party.
[19] There have been a number of cases in which the Court has denied an interim motion for sale prior to trial such as Arlow v. Arlow (1990), 33 R.F.L. (3rd) 44 (OCA), Walters v. Walters, 1992 CarswellOnt 811 and more recently, Kereluk v. Kereluk Ontario S.C.J. In each case there were compelling circumstances in which one or both tests favoured the resisting party, such as the availability of trial within a short period, prejudice on the equalization payment, or the need to preserve the residence for a vulnerable spouse or child who might well retain the home in the cause.
[31] In applying this standard, the Court of Appeal has noted that the party opposing the sale must demonstrate malicious, vexatious or oppressive conduct. Latchman v. Latchman at para. 2. That conduct can encompass a number of circumstances. As noted in Aragon v. Sobon, 2021 ONSC 6516 (at para 10):
[10] As McGee J. noted, there have been cases in which the court has denied interim motions for sale. In each, there were compelling circumstances favouring the resisting party, such as trial availability within a short period, prejudice to the resisting party’s right to an equalization payment, or the need to preserve the residence for a vulnerable spouse or child who may retain the home after trial.
[32] In other words, determining whether partition and sale should be granted or denied requires a consideration of the circumstances of the parties. I turn to those now.
b) The Application of the Legal Principles
[33] The Applicant advances two principal reasons why the matrimonial home should not be subject to partition and sale at this point:
a) As a result of his kidney decision and his need for dialysis, the Applicant argues that he is a vulnerable person and should not be required to move out of the house at this point.
b) The Applicant asserts that the property cannot be sold because of the significant issues that exist in respect of disclosure and Net Family Property.
[34] I reject both of these arguments.
[35] I begin with the issue of the Applicant’s medical condition. The Applicant argues that his kidney condition precludes him from moving and that partition and sale should be denied. The Respondent disagrees, and states that “I am advised and verily believe that [the Applicant] can be well maintained and looked after by his daughter…”. There are two problems with this statement. First, there is no indication as to who provided this information to the Respondent. As a result, it is unsubstantiated hearsay. Second, it is contrary to the information that the Applicant has deposed in his Affidavit.
[36] However, as I have pointed out at paragraph 9, above, there is no evidence before me that the Applicant must receive his dialysis treatment in the matrimonial home. The medical evidence that was provided is limited to showing that he must receive this treatment “at home”. There is no indication that he must receive this
[37] Indeed, the evidence is to the contrary. The value of the matrimonial home, as disclosed on the NFP statements, is between $1.2 and $1.3 million, and there is a very limited amount of debt on the property. As a result, if the matrimonial home is sold, the Applicant will end up with up to $600,000 with which to purchase another property to live in.
[38] This brings me to the second argument, which is the Applicant’s assertion that the NFP calculation has not been finalized and that, as a result, the property cannot possibly be listed for sale. I disagree for two reasons.
[39] First, the issues in respect of equalization that are in dispute are relatively quantifiable. In that respect, I note:
a) Each party has modest retirement income. Neither party is likely to owe the other party any spousal support payments.
b) There are a few questions about some payments that the Respondent received around the time of her retirement. Those payments have been disclosed, but the source of them has not been fully disclosed. This may produce some adjustments in the equalization payments.
c) There is an issue about the credit line on the matrimonial home. The maximum value of that debt is $100,000, and my understanding is that it is currently $47,000. As a result, the quantum and responsibility for this debt may need to be adjudicated.
[40] These are not significant issues. There is no real argument that there should be some post-judgment adjustments in this case. Further, the actual quantum of the dispute over the Net Family Property can be managed by having some of the proceeds, primarily from the Respondent’s portion, kept in trust after the sale takes place.
[41] Second, had the Applicant been concerned about disclosure, he would have taken some steps to seek additional disclosure to move this matter forward in the almost two years since he has sought disclosure from the Respondent. The delays in this case show that it is unlikely that there will be a trial date in this matter in the near future. The significant delays that have accrued and are likely to continue to accrue in the litigation of this matter are a significant factor that favour partition and sale at this juncture.
[42] Finally, in terms of the prejudice, the Respondent argues that she would be prejudiced if she was required to live in the home. She advises that the living conditions have become “intolerable”. Based on what I see in the Affidavit, I am not sure that the Respondent concerns rise to this level. I accept, however, that the Respondent is entitled to move on with her life, and should be entitled to the equity in the property.
[43] For all of these reasons, I am persuaded that the matrimonial home should be listed for sale and sold. However, on the facts of this case I am not persuaded by the Respondent’s argument that both parties should move out of the house so that it can be staged for maximum value. The Applicant does have a medical condition and he requires daily treatment. As a result, the house will have to be marketed and sold with the Applicant living in it. It will also have to be marketed and sold with enough time for the Applicant to find new accommodations, which should require a closing of between 60 and 90 days from the date the APS is signed. I have set out other terms in order to ensure that this matter moves forward expeditiously and with a minimum of dispute, and I retain jurisdiction to resolve any issues over the sale of the matrimonial home to the point when it is sold.
Conclusion
[44] For the foregoing reasons, I have concluded that the matrimonial home is to be sold on the following terms:
a) The parties are to agree on a real estate agent within twenty-one (21) days of today’s date. Failing agreement, the parties are to each provide three names and resumes of realtors to me, and I will select one.
b) The parties are to follow the reasonable advice of the real estate agent in respect of the listing price, staging and whether a certain offer should be accepted.
c) The Applicant shall be entitled to remain in the home until the property is sold.
d) The Applicant shall be entitled to his half of the proceeds from the sale of the matrimonial home, with a hold-back of $25,000. on account of any equalization issues arising from his NFP statement.
e) The Respondent shall be entitled to her half of the proceeds from the sale of the matrimonial home, with a hold-back of $100,000 on account of any equalization issues arising from her NFP statement.
f) I remain seized to address issues in respect of the sale of the matrimonial home up to the point where the home is sold.
[45] This brings me to the subject of costs. The parties are encouraged to agree on the costs of this motion and the second proceeding before Chozik J. In the event that they are unable to agree on those costs, then the Respondent shall have fourteen (14) days from today’s date to serve, file and upload costs submissions of no more than two (2) single-spaced pages, exclusive of case-law, bills of costs and offers to settle.
[46] The Applicant shall have a further fourteen (14) days from the receipt of the Respondent’s costs submissions to serve, file and upload costs submissions of no more than two (2) single-spaced pages, exclusive of case-law, bills of costs and offers to settle.
[47] The parties are also required to provide my judicial assistant, Samantha Alves (Samantha.alves@ontario.ca) with an electronic copy of the costs submissions. This is in addition to the filing and uploading required by the Rules, and Ms. Alves is NOT to be asked to arrange for filing with the Court office. That is counsel’s responsibility.
[48] Finally, there are to be no extensions for completing costs submissions, even on consent, without my leave. If costs submissions are not received in accordance with this timetable, then there shall be no order as to costs.
LEMAY J. Released: October 22, 2024
COURT FILE NO.: FS-22-104214 DATE: 2024 10 22
ONTARIO SUPERIOR COURT OF JUSTICE
B ET W EE N:
CAMPBELL, Clifford G. Applicant
- and -
CAMPBELL, Paulette M. Respondent
REASONS FOR JUDGMENT
LEMAY J. Released: October 22, 2024