NEWMARKET COURT FILE NO.: FC-23-35-00 DATE: 20240209 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Paraskevi (“Voula”) Giotis, Applicant AND: Ioannis (“John”) Giotis, Respondent

BEFORE: The Honourable Mr. Justice G.A. MacPherson

COUNSEL: P. Virc, Counsel for the Applicant K. Normandin, Counsel for the Respondent

HEARD: February 7, 2024

Ruling on Motion

Relief Requested

[1] The Applicant advances a motion requesting an Order for the relief that follows:

(a) an Order for the partition and sale of the matrimonial home, known municipally as 56 English Daisy Court, Kleinberg, Ontario;

(b) logistical details with respect to obtaining an agent, determining purchase price, and the obtaining of counsel to complete the transaction;

(c) exclusive possession of the matrimonial home to facilitate the sale;

(d) an Order dealing with the gross proceeds of sale; and

(e) an Order detailing how the contents of the matrimonial home are to be distributed.

[2] The Respondent filed a Cross-Motion requesting an Order permitting the Respondent to amend his pleadings to include a claim for exclusive possession of the matrimonial home.

Brief Factual Background

[3] The parties were married for 28 years prior to their separation on May 23, 2021.

[4] The Applicant is 58 years old and works as an administrative assistant with the York Region District School Board. Pursuant to her Financial Statement sworn January 4, 2024 she earns an annual income of $49,551.

[5] The Respondent is 66 years old and states that he is retired. Pursuant to his Financial Statement sworn January 24, 2024 he earns an annual income of $16,540.

[6] Pursuant to the pleadings, there are no children of the marriage as defined in section 2 of the Divorce Act.

[7] Pursuant to the pleadings there are two adult children of the relationship namely, Ellie Giotis born December 21, 1994 and Angelo Giotis born April 9, 1996.

[8] Following their separation on May 23, 2021 the Respondent remained living in the matrimonial home, known municipally as 56 English Daisy Court, Kleinberg, Ontario. The matrimonial home is mortgage free.

[9] Following their separation, the Applicant has lived in the basement of her parent’s home, known municipally as 927 Lovington Crescent, Mississauga.

[10] The parties own four rental properties: a) 44 Dalewood, Hamilton; b) 48 Dalewood, Hamilton; c) 27 Dromore, Hamilton; and d) 6133 Balboa – Boca Raton Florida. All properties are tenanted. Three of the properties are mortgage free while 48 Dalewood, Hamilton has a $30,000 mortgage.

[11] It is noteworthy that in November 2022 the Respondent opened a new bank account in his name and directed the tenants in the three Hamilton rental properties to pay rent to his new account. The rent has not been shared with the Applicant and is used, at least in part, to pay for some of the Respondent’s living expenses. The Respondent states that he did so because, post-separation, the Applicant withdrew $70,000 from the joint rental properties’ bank account.

[12] The Applicant admits to removing $70,000 from the rental properties’ bank account. She states that she did so to ensure the mortgage on 48 Dalewood would be paid and to pay legal fees. In terms of the mortgage, the Applicant has paid $1,195.74 per month towards the mortgage on 48 Dalewood, Hamilton.

[13] The rental payments from 6133 Balboa – Boca Raton Florida are also provided to the Respondent. He has not shared any of these payments with the Applicant.

Sale of the Matrimonial Home

[14] The Applicant requests an Order for the sale of the matrimonial home.

[15] The Respondent opposes the sale of the property.

[16] Sections 2 and 3 of the Partition Act, provides as follows:

Who may be compelled to make partition or sale

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.

Who may bring action or make application for partition

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).

When proceedings may be commenced

(2) Where the land is held in joint tenancy or tenancy in common or coparcenary by reason of a devise or an intestacy, no proceeding shall be taken until one year after the decease of the testator or person dying intestate in whom the land was vested. R.S.O. 1990, c. P.4, s. 3 (2).

[17] The Applicant advances the argument that, throughout the marriage, she has been the victim of domestic abuse at the hands of the Respondent. The Applicant has been out of the matrimonial home since the separation on May 23, 2021. The Applicant was charged with assaulting the Respondent on the date of separation. Those charges were subsequently withdrawn.

[18] The Applicant states that she needs access to the equity in the matrimonial home to pay for legal fees and to pay for living expenses. As stated, the Applicant has been living in the basement of her parent’s home for 2 ½ years. The Applicant lives in Mississauga although she works for the York Region District School Board located at 60 Wellington Street West, Aurora.

[19] The Respondent also advances the position that, throughout the marriage, he has been the victim of domestic violence at the hands of the Applicant. The Respondent argues that the matrimonial home should not be sold because: a) he is a vulnerable person as a result of being diagnosed with Chronic Obstructive Pulmonary Disease (more commonly referred to as COPD) and because he is a cancer survivor although he is in remission; b) he has financial vulnerabilities and c) he has no place to go.

[20] The Respondent also advances the argument that the parties’ 27-year-old adult son, Angelo, resides with him and, as Angelo suffers from depression and Obsessive Compulsive Disorder (more commonly referred to as OCD), remaining in the matrimonial home offers Angelo stability.

[21] The Respondent advances the argument that, although he did not claim exclusive possession in his pleadings, he is seeking to amend the pleadings to request the relief now and, accordingly, his claim for exclusive possession, if he is permitted to amend his pleadings, will be defeated by the sale of the home.

[22] It is noteworthy that the Applicant sought exclusive possession of the matrimonial home in her filed Application.

Analysis

[23] In Goldman v. Kudeyla, 2011 ONSC 2718, 5 R.F.L. (7th) 149, McGee J. provides a summary of the law with respect to a judicial Order for the sale of a property prior to trial. She states at paras. 17, 18 and 19:

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.

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.

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), 1991 ONCA 12940, 33 R.F.L. (3rd) 44, Walters v. Walters, 1992 ONSC 8599, [1992] O.J. No. 1564, 1992 CarswellOnt 811 and more recently, Kereluk v. Kereluk, 2004 ONSC 34595, 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.

[24] The Respondent’s request to amend pleadings to include a claim for exclusive possession of the matrimonial home, following receipt of a motion for partition and sale, 2 ½ years post-separation, appears strategic. The amendment of pleadings to request exclusive possession of the matrimonial home is insufficient, in and of itself, to oppose the sale. To do otherwise would mean that an interim request for partition and sale could easily be defeated by the simple stroke of a pen. Accordingly, I agree with the summary of law with respect to the sale of a property prior to trial as was set out by Justice McGee in Goldman. The Respondent must establish a prima facie case for a competing interest under the Family Law Act to trump, on an interim basis, the Applicant’s prima facie right for the sale.

[25] The Respondent has not set out a prima facie case for exclusive possession of the matrimonial home for the reasons that follow.

[26] The Respondent’s argument that the parties’ adult son, who neither party claims is a child of the marriage in their pleadings, is offered stability in the matrimonial home is not relevant. Regardless, the evidence was clear that Angelo is well able to operate a business; is well able to provide funds to the Respondent to contribute to the upkeep of the home; and is well able to afford to purchase two vehicles. There was no evidence presented to the court that would demonstrate that Angelo, by reason of illness, disability or some other cause, is unable to withdraw from parental control and, for clarity, neither party suggests he is.

[27] The Respondent’s diagnosis of COPD does not make him a vulnerable spouse such that he needs protection or special care. His cancer, in remission, does not make him vulnerable. There was insufficient evidence of medical vulnerability that would require the court to even consider making an Order for exclusive possession of the matrimonial home in favour of the Respondent on that basis.

[28] I am not persuaded that the Respondent has financial vulnerabilities such that exclusive possession would be awarded in his favour. He has lived in the matrimonial home, which is mortgage free, for 2 ½ years. He has received, in his sole bank account, all rental income from the four jointly owned properties and he has not shared any of the rental funds with the Applicant. The Respondent also receives funds from Angelo who resides in the matrimonial home. By contrast, the Applicant earns $49,000 per annum and is paying the mortgage on the one rental property that is encumbered. The Applicant is more financially vulnerable than the Respondent.

[29] Equalization remains unknown. The value of the matrimonial home remains in question. The Applicant describes the matrimonial home as a 5,800 square foot ranch-style bungalow with seven bedrooms and four bathrooms located on ¾ acres at the back of a cul-du-sac in an upscale neighbourhood. Based on the evidence presented for this motion, the value of the matrimonial home is somewhere between $2.6 M and $3.0 M.

[30] The combined value of the rental properties is, before notional disposition costs, encumbrances, and capital gains roughly valued at in or about $2.5 M.

[31] There may be an equalization payment owed to the Respondent. The Financial Statements of the parties indicate that the Applicant has $353,000 more assets than the Respondent. However, the Respondent claims date of marriage deductions of $287,805 and that figure is disputed by the Applicant on the basis that there is insufficient evidence to substantiate the deduction. Accordingly, the equalization payment may be very modest.

[32] The Respondent desires to purchase the Applicant’s interest in the matrimonial home. I am not convinced it is a realistic expectation. The Respondent reports an annual income of $16,000. He argues that there will be sufficient assets to equalize net family properties if he purchases the home for $2.6 M. The value of the home has not been determined and could be worth $3 M.

[33] The Respondent cannot currently afford the taxes, utilities, maintenance and insurance on the matrimonial home. His Financial Statement sworn January 24, 2024 shows an annual shortfall of $42,000 and he, by his own evidence, has been relying on the rental proceeds to assist in meeting his expenses. He would be unable to meet his expenses without the income from the rental properties.

[34] Regardless, all assets are not treated equally when it comes to tax. The rental properties will attract capital gains and those taxes will be onerous particularly if all rental properties are sold at the same time. In addition, the Respondent admits that there will be post-separation adjustments with respect to the rental proceeds he has retained and, of course, there is the claim for 2 ½ years of occupational rent. The Respondent’s desire to purchase the Applicant’s interest and maintain the matrimonial home is aspirational.

[35] The Applicant is entitled to her share of the equity in the matrimonial home. She is entitled to move from her parent’s basement, after 2 ½ years, and rent or purchase a home in York Region that is closer to her work. She should not be required to sell any of the rental properties and be subject to capital gains to move out of her parent’s basement.

[36] The Respondent states that he has no place to go. The Respondent can rent an apartment until the net proceeds from the sale of the matrimonial home are dispersed. The Respondent has $30,000 in his bank accounts (including the account with the rental proceeds), he has $124,000 in RRSPs and he has an income of $16,000 per year. In short order, if the matrimonial home sells and the net proceeds are divided, he will receive well over $1 M.

[37] Both parties claim to be victims of domestic violence. Indeed, both parties devoted a significant quantity of time trying to convince the court that the merits of their allegations of abuse should be believed. As stated, that determination will need to await trial as issues of credibility will need to be determined. This matter has just commenced, despite the lengthy period of time that the parties have lived separate and apart. Accordingly, there will not be a trial in this matter until, at the very earliest, November 2024.

[38] The Applicant, as joint owner, has a prima facie right to sell the matrimonial home subject to the Respondent demonstrating a prima facie case that he is entitled to a competing interest under the Family Law Act, in this case exclusive possession. For the reasons set out, the Respondent has not established a prima facie case for exclusive possession of the matrimonial home. Accordingly, the right to the sale prevails.

[39] The Applicant is concerned that the Respondent will attempt to obstruct or delay the sale of the matrimonial home. While I am not ordering exclusive possession of the matrimonial home to either party, the Applicant is permitted to contact the Trial Coordinator and schedule an urgent motion before me on the issue of exclusive possession if the Respondent obstructs or delays the sale and I will at that time consider the Applicant’s request for exclusive possession.

Amendment of Pleadings

[40] Rule 11 (3) of the Family Law Rules states as follows: “On motion, the court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.”

[41] Despite the court ruling, the Respondent is permitted to amend his pleadings if he so desires. The Respondent shall pay to the Applicant $750 in costs within 14 days of the amendment should he decide to do so.

Order

1. This is a temporary Order.
2. This Order is made under the Divorce Act.
3. The matrimonial home, known municipally as 56 English Daisy Court, Kleinberg, Ontario, shall be listed for sale no later than March 15, 2024 unless the parties agree, in writing, to an extension.
4. To facilitate the sale, the Applicant shall choose three potential real estate agents and provide them to the Respondent within seven days. The Respondent shall choose one of the proposed agents within seven calendar days of the Applicant providing the names of three agents. If the Respondent fails to choose an agent within seven days, the Applicant shall unilaterally select the real estate agent.
5. The parties shall consult with the real estate agent to determine the marketing strategy for the sale including the list price. In the event the parties are unable to agree on the list price, this matter shall return before me on an expedited basis and I shall determine the list price after hearing brief submissions from counsel. The Trial Coordinator is at liberty to add this matter to an already full list before me and the matter will be heard virtually.
6. All window coverings, light fixtures, appliances, built-in improvements, security systems and central vacuum will be offered for sale with the home.
7. The Applicant is permitted to attend the matrimonial home within 14 days for an inspection and to catalogue the contents. The parties, through counsel, shall arrange for this to happen and the parties shall agree on a proper division of household contents. If the parties fail to agree on the division of household contents, the contents of the home shall be sold at auction.
8. The parties shall agree to the distribution of sale proceeds. If the parties fail to agree on the distribution of net sale proceeds, the funds shall be held in trust pending agreement or court Order.
9. The Respondent is permitted to amend his pleadings to request exclusive possession of the matrimonial home if he still desires to do so. The Respondent shall pay to the Applicant $750 in costs within 14 days of the amendment should he decide to do so.
10. If the parties cannot agree on the issue of costs regarding this motion, I shall consider the request for costs. The Applicant shall serve on the Respondent and file electronically, through the Trial Coordinator, written submissions, limited to three pages, exclusive of the Bill of Costs and Offers to Settle within 20 days of the date of this decision. The Respondent shall serve on the Applicant and file electronically, through the Trial Coordinator, written submissions, limited to three pages exclusive of the Bill of Costs and Offers to Settle within 10 days thereafter. There shall be no right of Reply.

The Honourable Justice G.A. MacPherson Date: February 9, 2024