Ontario Superior Court of Justice

Court File No.: FS-24-00000043 (St. Thomas)
Date: 2025-03-28

Between

Lorri Lynn Parkins (Applicant)
and
Douglas John Parkins (Respondent)

Appearances:
Karen M. King, for the Applicant
Jennesa Plaine, for the Respondent

Heard: March 14, 2025

Endorsement

Jasminka Kalajdzic:

Introduction

[1] The Applicant, Lorri Parkins, has brought this motion for partition and sale of the matrimonial home. She seeks this interim relief in the context of her Application to set aside the Separation Agreement that she and the Respondent, Douglas Parkins, executed on February 15, 2023.

[2] Under the Separation Agreement, Mr. Parkins was obligated to make an equalization payment totalling $280,000, with the first $100,000 instalment payable immediately, followed by monthly instalments of $750 for twenty (20) years. Until the full $280,000 is paid, Ms. Parkins remains on title despite having no beneficial interest in the home.

[3] Mr. Parkins paid approximately $96,000 of the initial instalment because he deducted the finance charges that he incurred when he borrowed money to make the payment. The propriety of that deduction is in dispute. Beginning in March 2024, he also reduced his $750 monthly payments on account of other debts he says Ms. Parkins owes him. The terms of repayment of those debts are also in dispute.

[4] Ms. Parkins now finds herself in a situation of financial hardship. The monthly payments that she expected to receive have been cut by more than 50%. In addition, because she remains on title to the matrimonial home and on the mortgage, she cannot secure other loans or mortgages. She requests an order that the home be listed for sale immediately and the proceeds be held in trust pending resolution of the Application.

[5] Notably, Ms. Parkins is not seeking an order that the proceeds of the sale of the home be distributed to the parties. The sale will ensure her name is removed from title and the jointly held mortgage is paid out and discharged, thus enabling her to seek financing for her housing and other needs, but it will not give her immediate access to the full equalization payment.

[6] Mr. Parkins resists the motion on the basis that partition would be both oppressive, as he has nowhere else to live, and highly prejudicial to his position in the Application that the Separation Agreement is enforceable.

[7] I agree with Mr. Parkins’ second argument. The question of the enforceability of the Separation Agreement must be decided first. His right to remain in the matrimonial home pursuant to the Separation Agreement would be unfairly prejudiced if the court ordered its sale.

[8] That said, Mr. Parkins cannot have it both ways. He cannot rely on the terms of the Separation Agreement to resist the sale of the home and at the same time violate its terms. Accordingly, I order that he pay the shortfall from his initial payment and the sums improperly deducted from his monthly payments and that he continue to make the full $750 monthly payments until further order of this court.

Facts

[9] The parties married on February 10, 1995, and separated for a second and final time on April 1, 2022. They have three grown children, and Ms. Parkins currently rents a room from one of them.

[10] The parties negotiated the Separation Agreement in February 2023. Ms. Parkins was a paralegal and, according to Mr. Parkins, she was responsible for drafting various versions of the Agreement. He had the benefit of independent legal advice. She did not. There was no financial disclosure. The parties released all spousal support claims and equalized their property by way of a payment by Mr. Parkins to Ms. Parkins in the amount of $280,000, payable in instalments.

[11] For the purposes of this motion, the salient provisions of the Separation Agreement are as follows:

• Para. 13(i): Mr. Parkins will pay $100,000 on or before March 1, 2023;
• Para. 13(ii): Mr. Parkins will pay a monthly payment of $750 starting January 1, 2024 and to continue for 20 years for a total of $180,000;
• Para. 13(iii): upon payment of $280,000, Ms. Parkins will release all rights and/or claims she may have to the matrimonial home;
• Para. 13(iv): notwithstanding that Ms. Parkins will have no beneficial ownership or interest in the matrimonial home, she will remain on title as a joint owner;
• Para. 13(v): Mr. Parkins will remain in the home and will pay the mortgage and all other expenses associated with the property;
• Para. 13(vi): Mr. Parkins indemnifies Ms. Parkins for all claims of any third party with respect to the matrimonial home, including all penalties, interest, costs, legal fees and other expenses.
• Para. 15: Ms. Parkins will remain as a mortgagor on the mortgage, but Mr. Parkins will be fully responsible for all future payments toward the mortgage.

[12] On February 22, 2023, Mr. Parkins paid $96,009.95 to Ms. Parkins in purported compliance with para. 13(i) of the Separation Agreement. Ms. Parkins did not dispute the shortfall at the time.

[13] In December 2023, Ms. Parkins asked Mr. Parkins for money to pay for dental surgery she needed to have done but that she could not afford. She stated that she could not secure a loan on her own because she remains on the mortgage to the home. Mr. Parkins agreed to place the cost ($18,500) on a line of credit associated with the home. The parties did not enter into a written agreement regarding the terms of repayment of that line of credit.

[14] In March 2024, Mr. Parkins began deducting $350 from his $750 monthly payments. In November 2024, he began deducting a further $107 per month. Ms. Parkins contests those deductions.

[15] Ms. Parkins commenced her Application in March 2024 and seeks to set aside the Agreement on the basis of unconscionability and lack of financial disclosure.

Law and Analysis

[16] All tenants[^1] of any land in Ontario may be compelled to make or suffer partition or sale of the land: Partition Act, RSO 1990, c P.4, at s. 2.

[17] If the property in question is not a matrimonial home, there is a narrow standard for the exercise of the court’s discretion to refuse the prima facie right of a joint owner to partition and sale. The standard for exercise of that discretion is the existence of malicious, vexatious or oppressive conduct by the party seeking the partition: Latcham v. Latcham, para 2.

[18] The Ontario Court of Appeal in Silva v. Silva, p. 445, dealt with the interplay between the Partition Act and the Family Law Act, RSO 1990, c F.3 (“FLA”). The court stated that an application under s. 2 of the Partition Act should not proceed if it can be shown that it would prejudice the rights of either spouse under the FLA.

[19] As stated in Joseph v. Molnar, 2023 ONSC 4272, para 31, additional considerations apply when a motion is brought for the sale of a matrimonial home prior to trial. In such circumstances, a sale will not be permitted when:

a. The sale would prejudice the rights of the other spouse under the FLA or a court order (see Silva v. Silva, p. 445; Martin v. Martin, para 26).

b. The sale would prejudice the opposing spouse’s arguable claims under the FLA (see Binkley v. Binkley, [1988] O.J. No. 414 (CA), para 3; Gibson v. Duncan, 2013 ONSC 5377, paras 20-23).

c. The sale is not in the child’s best interests: Fernandes v. Darrigo, 2018 ONSC 1039 (Div. Ct.), paras 19-21.

[20] In the case before me, Mr. Parkins has an arguable right to possession and occupation of the matrimonial home pursuant to para. 13(v) of the Separation Agreement. The Agreement has not been set aside. Although Ms. Parkins also has an arguable claim that the Agreement is unconscionable, that is not the question I was asked to decide. A judge at trial or on a summary judgment motion will determine whether the Agreement should be set aside by reason of unconscionability or on any of the other grounds advanced by the Applicant pursuant to s. 56(4) of the FLA. Until then, I agree with the Respondent that a sale would prejudice his rights under the Agreement and, by extension, his rights under the FLA to enforce a domestic contract.

[21] Moreover, timing is a relevant consideration in dealing with a motion for sale at a temporary stage. The availability of a trial within a short period of time favours the party resisting the sale: Dhaliwal v. Dhaliwal, 2020 ONSC 3971, para 16. Counsel for the Applicant advised that the Application is on the November running list. Although it is never certain that a trial on a running list will be heard, the date for the trial management conference has been fixed for October and it is at least possible that a trial will be held less than eight months from now.

[22] The circumstances of the parties are similar to those of the litigants in Joseph v. Molnar. The respondent in that case brought an interim motion for the sale of the matrimonial home. Under the parties’ separation agreement, the applicant had the option to purchase the home. The court denied the respondent’s request for the sale of home on an interim basis as the separation agreement had not yet been set aside, which would be a final issue in the claim, and the sale of the home would prejudice the applicant’s ability to claim the relief that she sought in her application, namely, an order that she purchase the respondent’s interest pursuant to the terms of the separation agreement.

[23] The same prejudice would accrue to Mr. Parkins if the motion for partition and sale was granted before the merits of Ms. Parkins’ Application are determined. I dismiss Ms. Parkins’ motion on that basis.

[24] I am concerned, however, about Mr. Parkins’ unilateral reduction of the payments owed to Ms. Parkins under an Agreement that he says is enforceable. He states that there was a verbal agreement to charge Ms. Parkins over $3000 in fees that he incurred when he arranged financing to make the $100,000 instalment owed to her. No evidence of any such agreement was produced on the motion. On its face, charging her these financing costs is inequitable and inconsistent with their arrangement for the balance of the sums owed to Ms. Parkins under the Separation Agreement: Mr. Parkins is paying $180,000 over 20 years interest-free. In other words, Ms. Parkins is absorbing the costs of that financial arrangement.

[25] In defence of his two unilateral reductions of the monthly payments, Mr. Parkins makes two arguments. First, he states that starting in March 2024 he reduced the monthly payments to Ms. Parkins by $400 to “assist in the repayment of her dental debt”. Ms. Parkins was not consulted about the reduction, nor did she agree to it. Second, with respect to his $107 deduction starting in November 2024, Mr. Parkins relies again on a verbal agreement that he says required the Applicant to contribute to the repayment of student loans on behalf of one of their daughters. No documentation was produced to this effect, and Ms. Parkins denies any obligation to pay the loan. Furthermore, as Mr. Parkins concedes, the student loan is not listed in the Separation Agreement as a joint debt.

[26] Importantly, there is no provision in the Separation Agreement for adjustments to the amounts owed under para. 13. Absent any agreement to reduce those payments, it was improper for Mr. Parkins to do so.

[27] Rule 2 of the Family Law Rules, O. Reg. 114/99, as amended, gives the court great latitude to adjudicate cases fairly. The primary objective of the Rules is to enable the court to deal with all cases justly and fairly with a view to saving time and expense. Thus, for example, a spouse cannot insist upon strict compliance with an agreement when it was she herself who breached the terms of that agreement: George v. Wang, 2020 ONSC 6175, paras 29-30. The same principle applies in the case before me. Mr. Parkins cannot rely on the terms of the Separation Agreement to resist partition and sale of the matrimonial home while at the same time violate its terms. I am thus ordering that he pay the shortfall owed to Ms. Parkins from the initial instalment ($100,000 – $96,009.95 = $3990.05) and from the monthly payments to date (estimated to be $5735), plus prejudgment interest. I also order that he resume paying the full $750 monthly instalments until the Application is resolved or further order of this court.

Order and Costs

[28] The court orders that:

a. The Applicant’s motion is dismissed;

b. The Respondent, Douglas John Parkins, pay the Applicant, Lorri Lynn Parkins, $9,725.05, plus pre-judgment interest, within 30 days of this order; and

c. The Respondent shall not deduct any sums from his monthly obligation to pay $750 to the Applicant until further order of this court.

[29] At the conclusion of the motion, counsel stated that they would come to an agreement on the costs to which the successful party would be entitled and that if success is divided, each party would bear their own costs.

[30] In my view, success is divided. Although Ms. Parkins’ motion was dismissed, it was triggered by Mr. Parkins’ unilateral and improper reductions of the monthly payments on which she relies for her living expenses, and I ordered the payment of the shortfall. Under the circumstances, I do not grant Mr. Parkins his costs of the motion.

Jasminka Kalajdzic
Released: March 28, 2025

[^1]: The parties did not address whether the Applicant has all the rights, powers and obligations of a joint owner or that she has an interest in the home by being named a joint mortgagee notwithstanding the explicit provisions of the Separation Agreement that declare that she has no beneficial interest in the home. In a somewhat analogous case, the court in Weise v. Weise, 2023 ONSC 5227, found that a party who was on title and a mortgagee but who was also a bare trustee for the other owners was not a joint owner for the purposes of s. 2 of the Partition Act. Given my conclusion that partition would be unjust, I need not resolve this question.