SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Hsuan-Ying Lee (aka Lynn Gadsby), Applicant
AND:
Peter Donald Gadsby, Respondent
BEFORE: M. Kraft, J.
COUNSEL: Applicant, In-person
Ashley Lipinski, for the Respondent
HEARD: May 22, 2025
ENDORSEMENT
Nature of Motion
The respondent, Peter Donald Gadsby (“husband”) brings a motion for the partition and sale of a jointly owned home, subject to terms. The applicant, Hsuan-Ying Lee (“wife”) has resided in the jointly owned home since September 1, 2023, and she opposes the sale of the property.
The parties purchased the property located at 184 Hendon Avenue, Toronto ON (“Hendon property”) on May 8, 2023, for $1,350,000. The sale closed on August 18, 2023, about two weeks after the parties separated on August 9, 2023. Title to the Hendon property is in the name of both parties. The Hendon property has a mortgage registered on title of $611,200 and a line of credit of $265,700. The parties agree that there is approximately $500,000 of equity in the property.
Since the separation, the husband has been residing in a separate basement unit in his brother’s home. He argues that he requires his equity from the Hendon property to purchase alternate accommodation for himself and the children.
Currently, the parties’ two children, ages 6 and 2 ½, reside with both parents equally, pursuant to a 2-2-3 rotating schedule. This schedule has been in place since September 29, 2023. Half of the time, the children reside with the wife at the Hendon property and half of the time, the children reside with the husband at his brother’s home in Etobicoke.
The oldest child attends Senior Kindergarten at R.P.S. in the French immersion program, the school in the Hedon property neighbourhood. The youngest child attends daycare attached to the R.P.S.
According to the husband, the wife unilaterally moved into the Hendon property with the parties’ daughter without his consent.
It is agreed that the husband never resided in the Hendon property. The Hendon property is not a matrimonial home as the parties did not ordinarily reside in the property during the marriage or at the time of separation.
The husband has attempted to resolve the issue of the sale of the Hendon property with the wife’s former counsel. He made several offers to settle between May 2024 and October 2024, none of which were responded to.
During the wife’s questioning on February 3, 2025, the wife indicated that she wished to purchase the husband’s 50% interest in the Hendon property. However, she has taken no steps to do so. She has not obtained an appraisal of the Hedon property to determine its fair market value, nor made an offer to purchase the property, nor provided evidence of her ability to do so, such as a letter of commitment or proof of financing. During the motion, she made submissions that she cannot commit to purchasing the husband’s interest in the Hendon property until she knows what she will receive in terms of an equalization payment.
Issue to be Decided
- The only issue to be decided on this motion is whether or not the jointly owned Hendon property should be partitioned and sold?
Background
The wife was born in Taiwan. She immigrated to Michigan in 2003 when she was 17 years old. She graduated from Michigan State University in 2007 with a Bachelor’s Degree in Accounting. In 2009, the wife graduated with a Masters degree in Accounting. She is a certified public accountant.
The husband attended Centennial College for multi-media arts. He has been working as a Dental Technician since 2005.
The parties met online in 2014. The wife moved to Canada in January 2016 to be with the husband. The parties were married on April 30, 2016.
They have two children, ages 5 and 2 ½.
During the marriage, the parties resided in a condominium located at 80 Antibes Drive, Toronto that was jointly owned. They sold this condominium and on June 8, 2023, they signed an Agreement of Purchase and Sale to purchase the Hedon property.
The parties separated on August 9, 2023; at which time they were residing temporarily at the paternal grandmother’s home.
Two weeks after separation, the sale of the Hedon property closed on August 18, 2023.
On September 18, 2023, the wife was criminally charged with assault. She was released on an undertaking on September 19, 2023, not to have any direct or indirect contact with the husband.
Since the end of September 2023, the children have been residing equally with both parents, pursuant to a rotating 2-2-3 parenting schedule.
The wife issued the within Application on December 8, 2023, seeking, among other things, a divorce, child support, spousal support, parenting time, sole decision-making responsibility for the children, damages for family violence in the sum of $250,000; an order for exclusive possession of the Hendon property; equalization of net family property, and an order restraining the husband for depleting property under his control.
The parties attended a case conference on February 16, 2024, before Des Rosiers, J., at which, the husband was granted leave to serve and file an amended Answer and complete sworn financial statement by February 23, 2024; the husband was to file his T1 by February 23, 2024; the parties were served and filed sworn affidavits answering each other’s RFI by March 15, 2024; the parties were to attend for Questioning by April 30, 2024; and the parties were to attend a Settlement Conference on June 14, 2024;
The OCL delivered a s.112 assessment report on July 5, 2024. Among other things, the report recommended that the 2-2-3 parenting schedule remain in place; the husband be granted sole decision-making responsibility; and a holiday schedule.
The wife filed a Notice of Dispute to the OCL report, on July 22, 2024.
The parties attended a Settlement Conference on March 7, 2025, before Hood, J., at which the parties agreed to provide additional disclosure to one another; to provide answers to his/her undertakings on or before April 7, 2025; the husband was granted leave to bring this motion with respect to the sale of the Hendon property; and a TMC was scheduled for September 12, 2025.
The husband is employed by NDX Toronto as a dental technician. The wife is employed by TD Synnex as an internal auditor. In 2023, the husband’s Line 15000 income was $103,134 and the wife’s Line 15000 income was $112,827. The set-off Table child support obligation pursuant to the Child Support Guidelines based on the parties’ 2023 incomes, would be $130 a month owing by the wife to the husband. Neither party has paid the other child support since the separation.
The Law on the Sale of Jointly Owned property
- As set out by Pazaratz, J. in paragraph 16 of Dhaliwal v. Dhaliwal, 2020 ONC 3971, the legal principles associated with the sale of a jointly owned property can be summarized as follows:
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, 2020 ONSC 3386 (SCJ).
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.
The Husband’s Position on the Motion
- The husband argues that the Hendon property should be listed for sale for the following reasons:
(i) As a joint tenant, he has a prima facie right to have the property sold;
(ii) The wife will not consent to a sale of the property;
(iii) The wife has indicated that she wishes to purchase the husband’s half-interest in the property, but she has taken no steps to arrange for an appraisal of the property, apply for and secure financing or make an offer to purchase;
(iv) At the Settlement Conference on March 7, 2025, Hood, J., granted leave to the husband to bring this motion for sale of the property;
(v) The monthly expenses to maintain the mortgage and line of credit, both of which debts are registered on title to the home, along with the utilities for the Hendon property amount to $4,390 a month and it is not sustainable for the wife to continue to pay for these expenses on her salary of $100,000. Not making an order for the sale of the property will result in further financial hardship for the family as a whole;
(vi) There is no malicious or vexatious conduct on his part that would justify the court not making an order for the sale of the property;
(vii) The oldest child will start Grade 1 in September 2025. It follows that it would be in her best interests to list the Hendon property for sale with a closing to coincide with the end of the school year or summer so that the children are settled in new accommodation prior to the commencement of the school year;
(viii) It is evitable that the Hendon property will need to be sold and, as such, there is no reason to delay this any further;
(ix) Given that there is $500,000 of equity in the property, it makes sense that the property is sold, the net proceeds of sale are held in trust, pending a determination of the equalization payment and each party can receive an advance of the net proceeds of sale over time.
(x) Since the children are residing with the parents equally, section 9 of the Child Support Guidelines requires the parties to pay child support to each other pursuant to the Tables and for a set-off amount of child support to be paid. The husband calculates that the wife owes him set-off child support of $538 a month, which she has not paid since the separation.
(xi) The parties have a Trial Management Conference scheduled for September 12, 2025; at which time the Trial of their matter will be booked. There is no imminent trial date pending.
(xii) Given the circumstances, the family should attempt to maximize their return on the sale of the Hendon property and take advantage of the Spring real estate market.
(xiii) On his calculations, he is entitled to an equalization payment from the wife of $143,836. These claims can be secured by the net proceeds of sale from the Hedon property being held in trust pending further court order; and
(xiv) There is no evidence on record that the children will be negatively impacted by the sale of the Hendon property. They did not live in that property until after the parties’ separation. As it is, they reside there only 50% of the time with the wife and reside in the father’s home in Etobicoke, for the remainder of their time.
The Wife’s position on the Motion
- The wife’s arguments against the sale of the Hendon property are as follows:
(a) The children have been residing with her at the Hendon property since September 23, 2023 and a move would cause disruption for them and is not in their best interests.
(b) The oldest child, who is 6 years old, has been at R.P.S. and has friends and connections there. She will be disrupted if the family has to move;
(c) The children are connected to their neighbourhood, and they have always lived in North York near Bathurst and Finch and if the home is sold, they may not be able to remain in that neighbourhood;
(d) The husband is trying to sell the property in an effort to diminish the children’s relationship with the neighbourhood of the Hendon property.
(e) She wishes to potentially purchase the husband’s interest in the Hendon property but cannot do so until she knows what her equalization entitlement is;
(f) On her calculations, she is entitled to an equalization payment of approximately $250,424.
(g) The property can be sold after the Trial of this matter.
(h) The current housing market is not good, and it is not a good time to sell a property;
(i) She is not necessarily opposed to a sale of the Hendon property, but she is opposed to the timing of the sale taking place now.
Application of the Law to the Facts of this Case
In looking at both parties’ positions on the equalization payment, the parties are apart by about $400,000, in that, the wife believes she is owed an equalization payment of $250,424 from the husband and the husband believes he is owned an equalization payment of $143,836.
If the Hendon property is sold, the net proceeds will be held in trust, but for a small release to each party. This is necessary to protect both party’s property division claims. In other words, at least $400,000 plus funds for post-separation adjustments, ought to be remain held in trust until the specific issues regarding each party’s net family property is determined.
The carrying costs of the Hendon property have been paid solely by the wife since August of 2023, the total of which she calculates to be $86,955.03. These costs include mortgage payments of $49,200.31; property taxes of $8,504.93; utilities of $3,515.21; the joint TD home equity line of credit of $19,312.34; the purchase of a new washer/dryer of $2,298.40 and the replacement of a furnace of $4,163.85. These are post-separation adjustments such that the husband is obliged to pay his 50% share of capital expenses related to a jointly owned property. There is no agreement whether all of these expenses are capital expenses. The wife’s claim to these post-separation adjustments will be protected and secured by the net proceeds of sale of the Hendon property being held in trust.
The carrying costs associated with the Hendon property do not seem sustainable given that both parties earn about $100,000 a year. It is inevitable, therefore, that this property be sold, given the separation and the fact that both parties have to find alternative accommodation for themselves and the children.
The fact that the children have to move, does not necessarily mean that they have to leave the R.P.S. catchment area. The wife did not put any evidence on the record that she cannot find alternative housing, be it rental or otherwise, in the catchment area of the R.P.S.. Even if a school change was necessitated because of a move, the oldest child is set to start Grade 1 in September 2025, which is a natural time for a child to start at a new school. The youngest is in daycare and can be moved if necessary.
I find that the wife has not established any reason why the Hendon property should not be sold. To the contrary, the husband has established that the monthly cost of maintaining the Hendon property is not sustainable and if the property is sold, these monthly payments will stop and likely be reduced.
I make the following further findings:
a) The husband’s request for a sale displays no element of being “malicious, vexatious or oppressive;”
b) The wife has not established that a sale of the Hendon property would result in any prejudice with respect to any outstanding claims she still wishes to pursue. In fact, the wife’s claims for an equalization payment and post-separation adjustments will be protected by the net proceeds of sale of the Hendon property being held in trust;
c) As stated by Pazaratz, J. in Dhaliwal, at paragraph 24(c), “prejudice” must entail more than just the wife losing the right to sale, “Let’s not do anything right now because I want to keep all my options open;”
d) Sale of the Hendon property is inevitable in the long term;
e) The wife speaks in possibilities but has not taken any steps to advance her desire to purchase the husband’s half-interest in the Hendon property. She acknowledged during her submissions that she cannot obtain financing to purchase the husband’s half-interest in the Hendon property until she knows what her equalization payment will be. That could be a year and a half from now or longer depending on when a Trial of this matter can be scheduled. In any event, there was no evidence on the record about the wife trying to obtain financing and/or if she ran into difficulties doing so;
f) Accelerating the determination of each parent’s eventual residence and budget, will be helpful in assisting the court in determining the remaining issues, including parenting and support. It will also ensure that the parties move forward with their claims toward either a Trial or a negotiated resolution.
g) The case is not yet trial ready. This means that any temporary orders may remain in place for an extended period of time. The court has an interest in ensuring that temporary orders do not encourage or reward complacency and delay tactics.
- For all of the above reasons, I find that the Hendon property should be sold on the terms and conditions sought by the husband, subject to the amendments listed below.
ORDER
- This court makes the following order:
(i) The jointly held property located at 184 Hendon Avenue, Toronto, ON (“Hendon property”), shall be listed for sale within 30 days and the first reasonable offer from an arm’s-length purchaser shall be accepted, as advised by the parties’ real estate agent.
(ii) If the parties cannot agree on a neutral real estate agent and real estate solicitor, and one which is neither a friend nor relative of each other, then:
(1) The husband shall provide the names of 3 real estate agents to the wife within 7 days of the date of this Endorsement. The wife shall then select one of the three independent real estate agents proposed by the husband within 2 business days of receiving the proposed real estate agents. If the wife fails to provide her selection of a real estate agent within 48 hours of receiving the husband’s proposed real estate agents, then the husband shall be at liberty to select a real estate agent of his choosing.
(iii) The closing for the sale of home shall be no longer than 90 days and shall not occur until the end of the school year in June 2025.
(iv) The parties shall direct the listing agent to keep both parties updated, informed, and notified of all communications, correspondence and upcoming appointments involving the listing agent and/or the sale of the home, which shall include but not be limited to offers and feedback from potential buyers. Neither the wife nor husband shall preclude the other from participating and/or engaging in any of these steps.
(v) If the parties have a disagreement with respect to the list and/or sale of the Hendon property, the parties shall defer to the recommendations of the listing agent.
(vi) All major appliances and fixtures shall be included in the listing price, including but not limited to fridge, stove, dishwasher, washer, dryer, built in microwave, light fixtures and all shall be in good working order, free of any liens or encumbrances, save and except for the water tank which is a rental.
(vii) The parties shall take directions from the listing agent as to whether the Hendon property needs to be staged for the listing and/or whether repairs are needed to ready the Hendon property for sale. If staging is recommended or repairs are needed to ready the Hendon property for sale, the parties shall jointly share these costs;
(viii) With respect to showings, the parties agree to the following terms and conditions:
(1) The wife shall fully cooperate with all showings on reasonable notice and shall make appropriate arrangements to vacate the home between the hours of 8::00 a.m. and 5:00 p.m. in order to accommodate same.
(2) If a showing is requested during the children’s dinner hour, bathtime or bedtime, the wife shall advise the listing agent as to whether or not she is able to vacate the property. If she is not able to vacate the property for a showing during the children’s nap, bath or bedtime, the potential purchasers shall be invited back to the Hendon property for a showing the following morning.
(3) Neither party shall be in attendance at the home during showings, unless a showing is taking place during hours when a child is napping.
(4) Neither party shall in any way record, either audio, video or otherwise, the showings.
(ix) Upon the receipt of a fully signed agreement of purchase and sale (“APS”) the parties shall jointly retain a real estate lawyer on the following terms:
(1) The wife shall present the names of three real estate lawyers to the husband’s counsel within two days of receiving a full signed APS.
(2) The husband shall select one of the three independent real estate lawyers proposed b the wife and notify her, through counsel, of his selection within 48 hours of receiving the wife’s proposed lawyers. If he does not do so within 48 hours of receiving the names from the wife, the wife shall be at liberty to choose the real estate lawyer.
(3) If the wife fails to provide her list of three independent real estate lawyers within two business days of receiving a fully signed APS, the husband shall be at liberty to select a real estate lawyer of his choosing.
(x) The parties shall direct their jointly retained real estate lawyer to pay the following expenses from the sale of the Hendon property:
(1) Real estate commission;
(2) Adjustments for taxes, utilities, municipal fees or levies;
(3) Legal fees and disbursements relating to the sale; and
(4) All other sale adjustments.
(xi) The real estate lawyer shall provide an interim distribution of $20,000 to each party from the net proceeds of sale.
(xii) After paying the amounts referred to in (x) and (xi) above, the remaining net proceeds of sale from the Hendon property shall be held in trust by the jointly retained real estate lawyers pending further court order or agreement of the parties.
(xiii) For clarity, private loans one party claims to have received which may or may not have been used to renovate the Hendon property shall not be paid out of the proceeds of sale of the Hendon property as these loans have not yet been proven.
(xiv) Both parties shall cooperate fully with the listing and sale of the Hendon property, which includes but is not limited to, signing any and all documents necessary to give effect to the above paragraphs. Neither party shall unreasonably without consent.
(xv) If an issue arises after a fully signed APS is received by the parties and they cannot agree on how to sign the offer back, either party has leave to bring an urgent motion before this Honourable Court on short notice to have the issue addressed.
(xvi) The wife shall maintain the home in good condition until its sale.
(xvii) The wife shall be solely responsible for daily household expenses incurred from the date of her occupation to the date of closing. For clarity, this shall include the following: utilities, water and sewer fee, electricity, telephone, cable or satellite, internet, home security, and repairs that are not considered major repairs.
(xviii) Any major repairs shall only be undertaken if recommended by the real estate listing agent and shall be consented to prior to such expense being incurred.
(xix) If a bidding party is known to either the wife or husband (including but not limited to family, friends, acquaintances, present and past co-workers) this must be disclosed to the listing agent, including the nature of the relationship and any benefit, if any, to the related party.
(xx) The husband shall be permitted to attend the home on two separate occasions for inspection purposes, specifically one prior to the listing for sale of the home and one after the home is listed for sale to ascertain the condition of the home. The husband shall not remove any belongings from the Hendon property when he attends the home without the consent of the wife.
(xxi) The husband shall prepare a detailed list particularizing the belongings he claims were contained in the storage unit and which he wants to be returned to him prior to the listing for sale of the Hendon property. The wife shall make the husband’s belongings available to him for pickup at the home, the details of which shall be arranged through the husband’s counsel. If there is a dispute about this issue, the parties shall request a case conference to address this issue.
(xxii) The wife shall prepare a list of all expenses she has paid toward the Hendon property without contribution from the husband. If the parties agree on this list, the husband’s 50% share of these expenses can be paid to the wife out of his share of the net proceeds of sale upon the closing of the APS as a post-separation adjustment. If the parties cannot agree on the total amount spent and/or what is owing by the husband to the wife, the parties shall request a case conference to address this issue.
(xxiii) The husband is entitled to costs of this motion. The husband shall serve and file written costs submissions of no more than 3 pages in writing, not including a Bill of Costs or Offers to Settle within ten days of the release of this Endorsement. The wife shall serve, and file written responding costs submissions of no more than 3 pages in writing, not including a Bill of Costs or Offers to Settle within 5 days of being served with the husband’s costs submissions. Reply submissions, if any, shall be no more than 1 page in writing and served within 3 days of the husband receiving the wife’s responding costs submissions.
The Honourable Justice Kraft
Date: May 23, 2025