Superior Court of Justice – Ontario

Court File No.: FS-16-412502
Date: 2025-04-17

Re: Paul Mitchell, Applicant
And: Susan Craddock, Respondent

Before: Lynne Kraft

Counsel:
Applicant, self-represented
Respondent, self-represented

Heard: April 17, 2025

Endorsement

Nature of the Motion

[1] The applicant, Paul Mitchell, brought a motion that he have full carriage of the sale of the parties’ matrimonial home and the respondent, Susan Craddock, be required to vacate the property by no later than May 31, 2025, which order shall be enforceable by the Sheriff. Mr. Mitchell seeks these orders to require Ms. Craddock to comply with the sale order of Myers, J., dated April 20, 2023.

[2] Ms. Craddock did not file any responding material. She did, however, appear at the motion on Zoom. The court arranged to have Ms. Craddock give viva voce testimony so there was evidence from her on the record. While both parties are self-represented, Mr. Mitchell is a lawyer.

Issues to be Decided

[3] The issues to be decided on the motion are:

a. Should Mr. Mitchell be given full carriage of the sale of the parties’ matrimonial home?
b. Should Ms. Craddock be ordered to vacate the matrimonial home by May 31, 2025 to ensure that the property can be sold?

[4] For the reasons below, I have granted Mr. Mitchell full carriage of the sale of the matrimonial home; ordered the home be listed for sale by no later than May 31, 2025; ordered Ms. Craddock to vacate the home by 2:00 p.m. on June 13, 2025, failing which the Sheriff shall enforce the order.

Issue One: Should Mr. Mitchell be given full carriage of the sale of the parties’ matrimonial home?

[5] The parties were married on March 25, 1989.

[6] They separated in March 2009. They were divorced in May 2020.

[7] Since the separation 16 years ago, Ms. Craddock has lived in the matrimonial home, either on her own, or with the parties’ adult son, E., who is now 30 years of age.

[8] Mr. Mitchell and Ms. Craddock are the joint owners of the matrimonial home located at 60 Dennis Avenue, Toronto, ON M6N 2T8. The matrimonial home was purchased in 2003.

[9] There is a mortgage registered on title to the property of approximately $270,000. The monthly mortgage payments are $2,220 a month. Since September 2021, Mr. Mitchell has solely paid 100% of the mortgage without contribution from Ms. Craddock. Ms. Craddock testified that she paid the mortgage on her own prior to September 2021.

[10] In March 2022, Mr. Mitchell started this proceeding. He brought a summary judgment motion directing the sale of the matrimonial home because prior to starting this action, Ms. Craddock refused to cooperate with him to sell the home. Pursuant to the Partition Act, Myers, J. made the following orders:

a. The matrimonial home was to be listed for sale by May 31, 2023;
b. Ms. Craddock’s consent to the sale was dispensed with;
c. The requirement for Ms. Craddock to sign the agreement of purchase and sale was dispensed with;
d. Ms. Craddock was ordered to pay 50% of the monthly mortgage payments until the home was sold;
e. Ms. Craddock was to provide Mr. Mitchell with access to the property on reasonable notice to her;
f. When the matrimonial home was sold, after encumbrances, commissions and legal fees are paid, the net proceeds are to be held in trust pending further agreement or court order; and
g. Both parties were to cooperate with the preparation of and sale of the matrimonial home.

[11] Mr. Mitchell served Ms. Craddock with the motion materials one month before Myers, J. heard the motion. Ms. Craddock did not participate in the motion. She did not file responding material nor did she show up for the motion.

[12] Despite being served with Myers, J.’s endorsement dated April 20, 2023, Ms. Craddock would not cooperate with the Order. She did not list the matrimonial home for sale by May 30, 2023. Ms. Craddock refused to allow Mr. Mitchell or the realtor into the home.

[13] Finally, in August 2023, Ms. Craddock allowed Mr. Mitchell and his realtor entry into the house on one occasion. When Mr. Mitchell entered the house, he learned that the property was not ready for a sale; the house had been poorly cared for, and there was dirt and garbage everywhere.

[14] Mr. Mitchell brought a contempt motion in September 21, 2023 given Ms. Craddock’s breaches of the Myers order, which came before Czutrin, J. Czutrin, J. then held a number of conferences with the parties hoping to be able to resolve the issues relating to the sale of the matrimonial home, as follows:

a. On October 11, 2023, Czutrin, J. endorsed the record that he was hopeful that the parties’ adult son, E., could assist with the sale of the home but E. did not respond to the court.
b. On October 17, 2023, the parties appeared before Czutrin, J. and Mr. Mitchell advised the court that Ms. Craddock had failed to cooperate with the house inspection.
c. On October 18, 2023, Czutrin, J. ordered that Superior Inspections should conduct a home inspection and produce a report to both parties.
d. On November 27, 2023, the parties appeared before Czutrin, J. and he ordered the parties to exchange offers to settle regarding what was left needed to get the matrimonial home ready to be sold.
e. On January 8, 2024, Czutrin, J. ordered Ms. Craddock to have a licensed contractor attend at the matrimonial home and provide a written estimate of the necessary work to ready the home for sale and to share that information with the court and Mr. Mitchell.
f. On January 29, 2024, Czutrin, J. endorsed that he was not prepared to postpone the listing of the matrimonial home past February 29, 2024. He ordered Ms. Craddock to make arrangements to have the repairs done and pay for them, subject to re-adjustment when the house was sold by February 29, 2024. He amended Myers, J.’s order as follows:
i. Ms. Craddock was to maintain the matrimonial home in good condition until its sale or further agreement or court orders.
ii. Mr. Mitchell and Ms. Craddock were to equally pay the monthly mortgage payments until the matrimonial home has been sold.
iii. Both parties were to fully co-operate with the listing and sale of the matrimonial home.
iv. The matrimonial home located at 60 Dennis Avenue, Toronto, Ontario, M6N 2T8, shall be listed for sale on or before May 31, 2023 (that did not happen).
v. Ms. Craddock was to maintain the matrimonial home in good condition until its sale or further agreement or court order.
vi. On the completion of the sale, each party shall be entitled to payment of $75,000.00 and the balance shall be held in trust by the parties' real estate solicitor pending further written agreement or court order.
g. On May 23, 2024, the parties had a scheduled conference but Ms. Craddock was not in attendance. The conference was adjourned to August 8, 2024.
h. On August 8, 2024, the parties attended before Czutrin, J. and he ordered Mr. Mitchell to attend at the matrimonial home with a police officer to determine what remained outstanding to ready the home for sale and to prepare a timetable and propose how long it would take for the home to be readied for sale.

[15] During today’s attendance Ms. Craddock advised the court that she only attended one conference before Czutrin, J. Mr. Mitchell advised the court that Ms. Craddock attended all of the conferences. My review of all of the above Endorsements of Czutrin, J. in this matter, is clear that Ms. Craddock was in attendance at every conference, except one. It is clear that Ms. Craddock’s memory or narrative is not reliable.

[16] Mr. Mitchell does not have the savings or credit to borrow funds to pay for the repairs needed to ready the home for sale. Neither does Ms. Craddock. She told the court today that she could borrow funds from a family member to get these repairs completed. I am not persuaded that this is true.

[17] Mr. Mitchell seeks an order that he have full carriage of the matrimonial home sale because Ms. Craddock has demonstrated an unwillingness or inability to follow the April 20, 2023 court order that the home be sold.

[18] Pursuant to s.23(b)(iii) of the Family Law Act, RSO 1990, c F.3, where a spouse is unreasonably withholding consent to the disposition of a matrimonial home, the court may authorize the disposition subject to any conditions that it considers appropriate in the circumstances. However, where a property is owned jointly by spouses, as it is in this matter, s.23(b)(iii) has been found to be not broad enough to grant the court the power to dispense with the consent of the respondent spouse (Sullivan v. Sullivan).

[19] In Sousa v. Sousa, 1998 CarswellOnt 5280 (Ont. Gen. Div.), where the husband had done nothing to further the sale of matrimonial home after the home had previously been ordered sold and, the husband was residing in the home with the children, the Court found that the husband’s behaviour constituted his unreasonably withholding consent and dispensed with his consent. In this case, Myers, J. already ordered the matrimonial home to be sold two years ago. Myers, J. dispensed with Ms. Craddock’s consent and signature and still, Ms. Craddock has done nothing to comply with the court order. In fact, she has taken steps to deny Mr. Mitchell proper access to the home, except on one occasion in August 2023.

[20] In Kokaliaris v. Palantzas, 2016 ONSC 198, paras 47-49, Charney, J. held that where a spouse had failed to comply with a court order regarding the sale of a matrimonial home, and refused to cooperate with the listing agent and was unreasonably withholding consent to its sale, the appropriate remedy was that requested by Mr. Mitchell on this motion, that is, an order dispensing with Ms. Craddock’s consent for the sale of the matrimonial home, combined with an order that the mother in that case be given exclusive possession of the matrimonial home so it could be shown, inspected and sold. I agree with Justice Charney’s reasoning and am inclined to make the same order in this matter.

[21] Ms. Craddock testified that she will do the repairs needed to ready the matrimonial home for sale and that these repairs would be done by May 30, 2025. She further testified that she consented to the matrimonial home be listed for sale by no later than May 30, 2025. When the Court asked Ms. Craddock how she would fund these repairs and/or whether she had obtained quotes from contractors or repair individuals as to the cost of these repairs and/or how she knew the repairs could be completed between today’s date and May 31, 2025, Ms. Craddock answered as follows:

a. “she knows the repairs could be completed by May 30, 2025 because she has a list of what needs to be done”
b. “she has not met with any contractors or repair people but she believes it will not take long to do these repairs.”
c. “she doesn’t have the money but she has family members who can co-sign a loan for her.”
d. “all that is needed is for her to hire a plumber and a painter.”

[22] In answer to a question from the court why she did not take the steps between April 30, 2023 when Myers, J. made the last order for the sale of the home, and today to ensure the matrimonial home was in a state to be sold, Ms. Craddock answered that she was not aware of the details of the Myers, J. order.

[23] My review of Czutrin, J.’s Endorsements make it clear that once the home inspection report was completed, Ms. Craddock knew exactly what needed to be done to ready the matrimonial home for sale. Notwithstanding the order that she obtain estimates for the repair work, and the order that she arrange for the work to be done and pay for it, subject to reapportionment once the home was sold, Ms. Craddock took no steps to comply with these orders and arrange for the work to be done to the home to ready it for sale.

[24] I find Ms. Craddock’s answers to the questions from the court to be disingenuous. Ms. Craddock has taken no steps to comply with the prior sale orders. She wishes to remain living in the matrimonial home until it is sold. Nothing has changed between now and when Myers, J. made his order two years ago. There is no reason for the court to have faith that Ms. Craddock will now comply with an order that the matrimonial home be listed for sale or that she take steps to obtain a loan and arrange for the repairs to be completed of the home. Accordingly, I order Mr. Mitchell to have full carriage of the sale of the matrimonial home and dispense with the need for Ms. Craddock to be involved in any fashion.

Issue Two: Should Ms. Craddock be ordered to vacate the matrimonial home by May 31, 2025 to ensure that the property can be sold?

[25] Ms. Craddock testified that she wants to stay in the matrimonial home while it is listed for sale until it is sold.

[26] Mr. Mitchell has asked for an order requiring her to vacate the property by May 31, 2025, so he can ensure that the house is sold. He argues that Ms. Craddock cannot be trusted and is not responsible or able to ensure the home is listed for sale, can be maintained in a fashion for showings or cooperate with a listing agent.

[27] Mr. Mitchell is 77 years old. He is still practising law and would like to be in a position to retire. He has not been able to save for his retirement since he has been fully paying the mortgage on the matrimonial home since September 2021 while Ms. Craddock and the parties’ adult son live there exclusively. Mr. Mitchell’s evidence is that he has debt owing to the CRA, which is currently being garnished. He wishes to pay off his debt and move forward. The separation took place 16 years ago.

[28] Ms. Craddock is 72 years old. She has failed to disclose her income to Mr. Mitchell but he is aware that she is in receipt of a pension from CRA, OAS and CPP. Mr. Mitchell’s evidence is that Ms. Craddock has a long history of alcoholism and mental health issues. She continues to be angry about the separation and testified today that Mr. Mitchell left her 16 years ago in a hostile and bitter tone.

[29] Ms. Craddock told the court that when the matrimonial home is sold she will move to Saskatoon where she grew up and where her other family members reside. She also told the court that the parties’ adult son, E., will move with her.

[30] Pursuant to Rule 1(8) of the Family Law Rules, O Reg 114/99, the court may deal with a party’s failure to obey an order by making any order it considers necessary for a just determination of the matter.

[31] Any order of this court sets out the legal rights of the parties whether they agree with them or not. It is not open to Ms. Craddock to ignore the order of Myers, J. because she may not like it or agree with it. It is also not open to Ms. Craddock to ignore the orders of Czutrin, which she has done. Ms. Craddock has clearly demonstrated that she is either unwilling or unable to comply with an order that she cooperate in the sale of the matrimonial home, or arrange for the repairs needed to the home to ready it for sale. As a result, if another order is made by this court that the home be listed for sale on a new date, there is no guarantee that Ms. Craddock will not undermine or ignore this order as she did with Myers, J.’s order and the orders of Czutrin, J.

[32] Accordingly, an order that she vacate the matrimonial home is necessary for Mr. Mitchell to have full carriage of the sale of the home. Without the requirement that Ms. Craddock vacate the matrimonial home by a certain date, there is no guarantee for Mr. Mitchell that the matrimonial home will be listed for sale.

Order

[33] This court makes the following order:

a. Paul Mitchell shall have full and sole carriage of the sale of the matrimonial home, located at 60 Dennis Avenue, Toronto, Ontario, including but not limited to, making the decisions about the listing agent, determining what is necessary to ready the home for sale, the marketing plan for the sale of the home, the listing price, the open houses and whether to accept an offer to purchase the home from an arm’s length third party.

b. The matrimonial home shall be listed for sale on or before May 30, 2025.

c. Ms. Craddock shall fully cooperate and give Mr. Mitchell, the listing agent, and any repair individuals access into the matrimonial home, on reasonable notice between the date of the release of this Endorsement and May 30, 2025 to enable them to ready the home for sale, sign the listing agreement and take any other necessary steps to ensure that the property is listed for sale in accordance with this order.

d. Ms. Craddock shall not interfere with any aspects of the sale of the matrimonial home, including the erection of a For Sale sign and/or any open houses or showings.

e. Ms. Craddock’s signature is not required for Mr. Mitchell to list the matrimonial home for sale. The need for Ms. Craddock’s consent is hereby dispensed with for any and all aspects of the sale of the parties’ matrimonial home. Ms. Craddock’s signature is not required for Mr. Mitchell to accept an offer or sign back an offer to purchase the matrimonial home.

f. Ms. Craddock shall vacate the matrimonial home by no later than 2:00 p.m. on June 13, 2025. The Sheriff is directed to enforce this order and enter the matrimonial home and cause Ms. Craddock to vacate the matrimonial home if she does not do so by 2:00 p.m. on June 13, 2025. The parties’ son, E., shall be free to remain living in the basement of the matrimonial home pending its sale.

g. When the matrimonial home is sold, after encumbrances are paid, commissions and legal fees associated with the sale, the parties shall each receive $75,000 and the balance of the net proceeds of sale shall be held in trust pending further court order or agreement of the parties.

Lynne Kraft

Date: April 17, 2025