**CITATION:** Belford v. Johnston, 2024 ONSC 7157
COURT FILE NO.: FS-22-51
DATE: 2024/12/19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BELFORD (JOHNSTON), Lesa Ann
Applicant
– and –
JOHNSTON, William
Respondent
M. Young, for the Applicant
S. Sikora, for the Respondent
HEARD: September 17, 2024
CORRECTED
REASONS FOR DECISION
Correction is listed on page 1 and 14
wilcox, j.
INTRODUCTION
[1] The applicant’s Notice of Motion of February 1, 2024, sought exclusive possession of the matrimonial home and its contents and orders for the control of the sale of the property and for the disposition of the net proceeds. The respondent’s Cross-Motion of August 7, 2024, sought the dismissal of the applicant’s motion, the transfer of the applicant’s interest in the matrimonial home to the respondent or, if the property was sold, a division between the parties of the proceeds.
[2] In the result, I order that the property be listed for sale forthwith, that the parties shall use a real estate agent and lawyer of the applicant’s choosing, and that each party shall receive twenty-five percent of the net proceeds with the balance remaining in trust pending further order.
BACKGROUND
[3] The parties married on September 23, 1995, and separated on November 22, 2021. They continued to reside in the matrimonial home at 222 Golf Course Road, Callander, Ontario, until October, 2022, when the respondent paid to the applicant an uncharacterized sum of $200,000.00 and she moved out.
[4] The applicant wife indicates that she was a stay-at-home mother for their three children. They are now adults, but she says that she has also been a stay-at-home grandmother for their granddaughter. She describes her employment history as part-time and low income.
[5] The respondent husband was employed as a heating and sheet metal worker. He bought into and became a partner in KRB Mechanical Ltd., then became its sole owner in or about 2018.
[6] The wife’s Application was issued on April 6, 2022, and amended on September 19, 2024. She claimed for a divorce and other relief including exclusive possession of the matrimonial home and its contents, an unequal division of property in her favour, and spousal support.
[7] The respondent’s amended Answer denies the applicant’s claims. He in turn claims, in addition to a divorce, property relief including exclusive possession of the matrimonial home and its contents, partition and sale of the matrimonial home, and an unequal division of property, in his favour.
[8] Interim spousal support of $9,665.00 per month payable by the respondent to the applicant commencing March 1, 2023, was ordered after a contested motion.
[9] The matter has not resolved through negotiation or conferencing. It is scheduled for a seven-day trial commencing on July 2, 2025.
[10] The parties’ major assets include the matrimonial home, KRB Mechanical Ltd., a holding company, the cash surrender value of some life insurance, RRSPs, TFSAs, and a collection of collector’s and recreational vehicles. All but the matrimonial home and some investments are said to be in the respondent’s name alone. The applicant had some investments in her name. The matrimonial home is in joint names.
[11] There were also some debts, including a line of credit, a mortgage, and credit cards.
[12] The applicant’s draft Net Family Property Statement as of February 1, 2024, showed the respondent owing her an equalization payment of $1,395,562.00, subject to some disputed items. That statement assigned the matrimonial home, valued therein at $850,000.00, to the respondent. The respondent has not filed a Net Family Property Statement.
The applicant’s notice of motion
[13] The applicant’s Notice of Motion of February 1, 2024, sought:
an order to proceed by way of summary judgment, if necessary;
exclusive possession of the matrimonial home and its contents pursuant to the Family Law Act;
that she be able to list and sell the matrimonial home with a real estate agent and a real estate lawyer and at a price of her choosing, without the need for the respondent’s signature on the necessary documents, pursuant to the Partition Act;
payment of the net proceeds to her or;
in the alternative, payment of one half of the net proceeds to her and one half to trust pending a further order, or;
in the further alternative, payment of the net proceeds to trust pending further order.
The respondent’s notice of motion
[14] The respondent’s Notice of Motion of August 7, 2024, sought orders that:
the applicant’s motion for sale of the matrimonial home be dismissed;
the property be valued at $850,000.00;
the applicant transfer her interest to the respondent for one half of its net value after deducting any encumbrances thereon and/or a post-separation accounting:
(i) contemporaneously with or set off by any equalization payment owed between them, or;
(ii) within 30 days of the order;
- in the alternative to the relief requested in clauses one through three, if the property is sold, the proceeds be divided with the applicant receiving at least $245,580.83 and the respondent receiving $275,091.34.
law
[15] The relevant sections of the Partition Act are:
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. R.S.O. 1990, c. P.4, s. 2.
3(1): Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested. R.S.O. 1990, c. P.4, s. 3 (1).
[16] Those of the Family Law Act are:
Powers of court respecting alienation
23 The court may, on the application of a spouse or person having an interest in property, by order,
(a) determine whether or not the property is a matrimonial home and, if so, its extent;
(b) authorize the disposition or encumbrance of the matrimonial home if the court finds that the spouse whose consent is required,
(i) cannot be found or is not available,
(ii) is not capable of giving or withholding consent, or
(iii) is unreasonably withholding consent,
subject to any conditions, including provision of other comparable accommodation or payment in place of it, that the court considers appropriate;
(c) dispense with a notice required to be given under section 22;
(d) direct the setting aside of a transaction disposing of or encumbering an interest in the matrimonial home contrary to subsection 21 (1) and the revesting of the interest or any part of it on the conditions that the court considers appropriate; and
(e) cancel a designation made under section 20 if the property is not a matrimonial home. R.S.O. 1990, c. F.3, s. 23.
Order for possession of matrimonial home
24 (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,
(a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents;
(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;
(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;
(d) direct that the contents of the matrimonial home, or any part of them,
(i) remain in the home for the use of the spouse given possession, or
(ii) be removed from the home for the use of a spouse or child;
(e) order a spouse to pay for all or part of the repair and maintenance of the matrimonial home and of other liabilities arising in respect of it, or to make periodic payments to the other spouse for those purposes;
(f) authorize the disposition or encumbrance of a spouse’s interest in the matrimonial home, subject to the other spouse’s right of exclusive possession as ordered; and
(g) where a false statement is made under subsection 21 (3), direct,
(i) the person who made the false statement, or
(ii) a person who knew at the time he or she acquired an interest in the property that the statement was false and afterwards conveyed the interest, to substitute other real property for the matrimonial home, or direct the person to set aside money or security to stand in place of it, subject to any conditions that the court considers appropriate. R.S.O. 1990, c. F.3, s. 24 (1).
Temporary or interim order
(2) The court may, on motion, make a temporary or interim order under clause (1) (a), (b), (c), (d) or (e). R.S.O. 1990, c. F.3, s. 24 (2).
Order for exclusive possession: criteria
(3) In determining whether to make an order for exclusive possession, the court shall consider,
(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children. R.S.O. 1990, c. F.3, s. 24 (3); 2014, c. 7, Sched. 9, s. 4.
Best interests of child
(4) In determining the best interests of a child, the court shall consider,
(a) the possible disruptive effects on the child of a move to other accommodation; and
(b) the child’s views and preferences, if they can reasonably be ascertained. R.S.O. 1990, c. F.3, s. 24 (4).
[17] There is a plethora of cases dealing with applications for the partition and sale of lands in the family law context. A non-exclusive list of the legal principles drawn from these that are applicable in interim motions in family cases to sell jointly-owned matrimonial homes was set out by Pazaratz J. in Dhaliwal v. Dhaliwal[^1] which decision was referred to with approval by the Divisional Court in Noguiera v. Noguiera[^2]. The list was set out again by Pazaratz J. in Ricketts v. Ricketts[^3] and by Piccoli J. in Sidhu v. Kaur[^4]. Paragraph 16 of Dhaliwal reads as follows:
The applicable legal principles include the following:
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 1953 CanLII 148 (ON CA); 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) 1990 CanLII 6718 (ON CA), 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 1953 CanLII 148 (ON CA), [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) 1973 CanLII 603 (ON CA), 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) 2002 CanLII 44960 (ON CA), 27 R.F.L. (5th) 358 (ON CA); Dulku v. Dulku 2016 CarswellOnt 16066 (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, 2004 CanLII 34595 (SCJ).
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 1992 CanLII 7402 (ON CA). Nor can it give either joint tenant a right of first refusal. Dibattista v. Menecola 1990 CanLII 6888 (ON CA). 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?
[18] The decision in Goldman v. Kudeyla[^5] was referred to by Pazaratz J. but only with respect to a limited issue. However, it also continues to be cited frequently for its concise statement of the approach to interim motions of the sale of a matrimonial home.[^6] At paragraphs 17 and 18, McGee J. stated:
[17] Section 2 of the Partition Act provides that a joint owner has a prima facie right to the sale of property.
[18] Both counsel referred to the Ontario Court of Appeal decision in Silva v. Silva. There, the court said that if an order for sale under the Partition Act was likely to jeopardize substantial rights in relation to jointly owned property, such a request should be deferred until the Family Law Act claims are decided. "Putting it more broadly, an application under s. 2 should not proceed where it can be shown that it would prejudice the rights of either spouse under the F.L.A."
ANALYSIS
[19] The applicant wife has a prima facie right to the order she seeks for the sale of the matrimonial home, subject to the question of whether the respondent’s family law interests would be prejudiced. The respondent offered a variety of reasons why the sale should not be ordered. Instead, he primarily sought the transfer of the property to him.
[20] His first reason was that he was advancing some claims under the Family Law Act. One was for an unequal division of the net family property. This relates to his business, KRB Mechanical Ltd., on the basis that he bought it, he did not use joint funds to do so, and it is solely in his ownership. This sounds to me like throwback to the Family Law Reform Act approach to property, separating family assets from non-family assets, which the Family Law Act got away from. However, I acknowledge that the Family Law Act does allow for unequal division in some circumstances, including those related to the acquisition, disposition, preservation, maintenance and improvement of property[^7]. The respondent is free to advance such a claim, although its success and the implications for property division are, of course, unknowable at this time.
[21] Furthermore, I note that most of the major assets, subject to some debts, are on the respondent’s side of the ledger. The value of these, including of the matrimonial home, is uncertain. Although there have been valuations and appraisals obtained, their validity and accuracy are in dispute. There are also some accounting issues between the parties. Consequently, there is no agreement on their respective net family properties, let alone on any equalization figure, or how to fund it.
[22] In addition, there is an issue about double-dipping, as the business is both an asset potentially subject to an equalization claim and a source of income for spousal support purposes.
[23] Nevertheless, it is expected that the respondent ultimately will have to make some equalization payment. His affidavit of January 31, 2023, recognizes that it might be quite large. The applicant’s current estimates, based on scenarios using various asset values from the business valuations and different allocations between the parties of the matrimonial home’s value, range from about $424,000.00 to nearly $1.8 million being owed to her. Even with all of the issues raised by the respondent with respect to valuation, accounting and property division, there is no suggestion on his behalf that he would be the one owed an equalization payment or that the transfer of the home to him would be required in order to satisfy such.
[24] The primary relief requested by the respondent would require the determination of the values of the encumbrances, of the post-separation accounting and of the equalization that are expected to be in issue at trial. Consequently, that relief is not currently available on an interim basis.
[25] The respondent also submitted that he has a competing claim for exclusive possession of the matrimonial home and that ordering the sale would ignore his right to have the claim heard at trial. Indeed, both parties claimed exclusive possession in their respective pleadings. There is currently no order for it in favour of either.
[26] McGee J. observed in Jiang v. Zeng[^8] at paragraphs 36 and 37:
[36] Exclusive possession is an Order only available pending the sale of a matrimonial home. An Order for exclusive possession cannot be used to frustrate an owner’s prima facie right to the sale of the home. The sale of the matrimonial home can be ordered prior to Trial on a motion, or at Trial….
[37] The sale of a matrimonial home will generally be ordered on a motion unless there are children residing in the home, per section 24(3) (a) of the Family Law Act, or, an entitlement under the Act that would be otherwise defeated.
This continues to be quoted with approval.[^9]
[27] Of the criteria that the court is directed to consider, only s. 24(3)(c) might apply in the circumstances of this case. However, the respondent has not shown any reason for his having exclusive possession of the matrimonial home after trial. His Answer/Claim by Respondent proposed listing it for sale. His Notice of Motion primarily seeks the transfer of the applicant’s share of the matrimonial home to him. There is nothing in his affidavits, factum or submissions showing why he would need exclusive possession of the matrimonial home in lieu of a sale or of a transfer to him. Indeed, his claim for this relief appears only to reflect the fact that she had moved out and left him with de facto possession of the matrimonial home pending its sale.
[28] As noted, another of the respondent’s reasons for opposing the sale of the matrimonial home is that he wants to purchase it. This is not relief that can be ordered. Although there is authority to order the sale of the matrimonial home, there is no authority to order that the applicant’s share be transferred to the respondent.[^10] This issue was dealt with by Charney J. in Lowe v. Lowe[^11] who summarized the law on point as follows[^12]:
[15] While the applicant would like to purchase the respondent’s interest in the Bancroft cottage, both parties recognize that the court does not have the authority to grant a spouse the right to purchase the other’s interest in, or the right of first refusal for, jointly owned property. This applies to the cottage properties, and will also apply to the matrimonial home if the parties cannot reach an agreement with regard to the disposition of that property: Martin v. Martin, 1992 CanLII 7402 (ON CA), [1992] 8 O.R. (3d) 41.
[16] In Brienza, Perell J. summarized the law at paras. 37 and 38:
The court does not have the jurisdiction to compel one co-owner to sell to the other, although the co-owners may participate in the court-ordered sale of the property in the open market [citations omitted];
The court does not have the jurisdiction under the Partition Act to grant a right of first refusal to either co-owner: Dibattista v. Menecola (1990), 1990 CanLII 6888 (ON CA), 75 O.R. (2d) 443 (C.A.). In Silva, supra, the court noted that where a sale is ordered, the respondent may bid in the sale. See also: Glick v. Carr, [1991] O.J. No. 1588 (Gen. Div.).
[17] See also: Buttar v. Buttar, 2013 ONCA 517, at para. 64: “This court has jealously guarded the rights of joint owners to the best price for jointly-owned property”; Laurignano v. Laurignano, 2009 ONCA 241, at para. 3; Watson v. Watson, 2015 ONSC 2091, at paras. 34-37; McColl v. McColl, 1995 CanLII 7343 (ON SC), at para. 29; Kokaliaris v. Palantzas, 2016 ONSC 198, at para. 44; and Delongte v. Delongte, 2019 ONSC 6954, at para. 14:
To be clear, the respondent is not obligated to sell his half interest in the matrimonial home to the applicant, even if she is financially able to make an offer to do so. It is, however, an option the parties may wish to consider as part of a global resolution of all issues which may avoid the costs of proceeding to trial.
[29] In the circumstances, I am not persuaded that the respondent has met his onus of showing that he has a legitimate family law claim that would be unfairly prejudiced by the sale of the matrimonial home. Consequently, I order that the home be listed for sale, forthwith.
[30] The applicant’s motion sought an order that she have exclusive possession of the matrimonial home until the sale. At this point, however, the respondent has occupied the home since the applicant moved out. I see no reason to disturb that status quo pending the sale.
[31] The applicant also sought to have carriage of the sale without the need for the respondent’s signature, and to use the real estate agent and lawyer of her choosing. The respondent’s response in the event of a sale had only to do with the disposition of the net proceeds. I see no reason not to allow the applicant to use the agent and lawyer of her choice. However, as there is no indication that the respondent would not cooperate with the sale process (his Notice of Motion in fact contemplated the possibility of a sale), I will not dispense with the requirement for his signature on the sale documents. Of course, if there was to be conflict over the sale process, a further short motion could be brought to resolve that and to fix costs.
[32] The applicant’s motion sought payment of the net proceeds of sale to her, or payment of one half to her with the other half remaining in trust, or the retention of the full amount in trust. In the event of a sale, the respondent sought $275,091.34 for himself and that at least $245,580.83 be paid to the applicant, based on calculations that were contested. The applicant characterized her request as an advance on equalization, which she said she needed in order to retain counsel for trial. In this regard, I note that she has some investments in her name, she received an uncharacterized payment of $200,000.00 from the respondent after separation, and she receives substantial monthly spousal support. Her most recent financial statement is from January, 2023, and pre-dates the commencement of spousal support payments. Therefore, it is not clear that she has any need for such an advance. However, as previously noted, the respondent was not adverse to some division of the proceeds of sale. Given the uncertainty around the issue and the numbers, it would be unwise to fix a payment at any large number. Consequently, I order that each shall receive twenty-five percent of the net proceeds, with the balance remaining in trust.
[33] Costs are reserved to the trial judge.
Wilcox, J.
Released: December 19, 2024
COURT FILE NO.: FS-22-51
DATE: 2024/12/19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BELFORD (JOHNSTON), Lesa Ann
Applicant
– and –
JOHNSTON, William
Respondent
REASONS FOR DECISION
Wilcox, J.
Released: December 19, 2024
CORRECTED DECISION: The text of the original decision was corrected on October 10, 2025, and the description of the correction is appended below:
• Johnson was corrected to Johnston in the citation line on pages 1 and 14.
[^1]: 2020 ONSC 3971 at para. 16
[^2]: 2021 ONSC 7564 at para. 3
[^3]: 2024 ONSC 206 at para. 12
[^4]: 2024 ONSC 6008 at para. 33
[^5]: 2011 ONSC 2718
[^6]: See for example Hamilton v. Hamilton, 2021 ONSC 274
[^7]: Family Law Act, s. 5(6)(h)
[^8]: 2019 ONSC 1457
[^9]: See for example Lowe v. Lowe 2020 ONSC 5224 at para. 13
[^10]: The exception would be under FLA s. 9 to satisfy an obligation imposed by an order relating to equalization.
[^11]: 2020 ONSC 5224
[^12]: For further authority on this point, see the Ontario Court of Appeal decisions in Martin v. Martin 1992 CanLII 7402 (ON CA), [1992] O.J. 656, Buttar v. Buttar, 2013 ONCA 517, and Danecker v. Danecker 2014 ONCA 239. In Buttar, Rosenburg J.A. writing for the court, provides a thorough analysis of the relationship between the Partition Act and the Family Law Act’s property division provisions on the issue of the division of property in specie.