Cayen v. Parish, 2025 ONSC 3125
COURT FILE NO.: FC-21-241
DATE: 2025/05/27
ONTARIO
SUPERIOR COURT OF JUSTICE FAMILY COURT
BETWEEN:
Cindy Lee Ann Cayen, Applicant
– and –
Chad Parish, Respondent
Appearances:
Alexander Hodder, for the Applicant
Self-Represented, for the Respondent
Heard: May 20, 21, 22, 2025
Justice: Frances M. Tranquilli
Introduction
[1] This trial concerns the sale of residential property held by the parties as joint tenants.
[2] There are already two court orders directing the sale of the property pursuant to the Partition Act. The respondent opposes the orders but has not pursued an appeal. The applicant retained a real estate agent as provided in the order. However, the respondent will not accommodate showings and the agent has not been able to actively market the listing. The respondent insists there was an agreement where the applicant would transfer her interest in the house to him. Alternatively, he claims plans to purchase the house and that the applicant has undermined those efforts to date.
[3] The parties purchased the house in 2019 during their common law relationship that began in 2014. They are the parents of two children: L.R. born in 2016 and J.R. born in 2019. The parties separated in March 2021 when the applicant left the house with the parties’ two children. The respondent has remained in sole possession of the home since separation. The residential property is mortgaged and is the sole asset of consequence to the parties, for which they also hold a considerable debt obligation.
[4] This trial was originally scheduled to address property and parenting issues that remain outstanding between the parties, the latter issue of which includes disputes as to decision making, primary care, parenting time and child support. However, the court was beset by a flurry of urgent motions in the three weeks before the commencement of trial concerning allegations of withholding the children and the children’s well being while in the care of the applicant and her new partner. The applicant also sought relief to address the respondent’s ongoing non-compliance with court-ordered sale of the home. The parenting issues were adjourned from this trial date pending possible involvement of the Office of the Children’s Lawyer. The property issues, including the applicant’s motion to address the outstanding sale of the home, remained to be addressed at this trial.
[5] The applicant seeks an urgent determination of further terms for the sale of the home. She particularly seeks terms that require the respondent to vacate the property, with a writ of possession, if necessary. She submits that the respondent’s failure to cooperate in the court-ordered sale is causing financial prejudice and making them vulnerable to power of sale proceedings. The parties cannot maintain the mortgage payments and other carrying costs. The respondent is free to bid for the house on the open market, but the house must be actively marketed for sale without further obstruction or delay by the respondent. The applicant also seeks the court’s direction on the distribution of the proceeds realized in the sale of the house.
[6] The respondent opposes the applicant’s request. He seeks relief that would allow him to remain in exclusive possession of the home and would transfer the applicant’s interest to him. He submits the applicant failed to honour their agreement to transfer the asset to his sole ownership. He also claims she failed to cooperate in his efforts to refinance the mortgage. He stresses the importance of having this home for the parties’ children, his daughter from a previous relationship, and his young granddaughter. He submits the forced sale will leave him homeless.
[7] The trial proceeded with the respondent’s participation, notwithstanding his non-compliance with previous court orders regarding sale of the house. The respondent also did not file an updated 13.1 Financial Statement as ordered. The respondent’s most recent financial statement is from 2022. He advised he had not filed a tax return for 2024 and did not have his tax returns from previous years, ostensibly due to the anxiety and stress caused by the applicant in this proceeding.
[8] The court notes that the applicant could have requested relief pursuant to rule 1(8) of the Family Law Rules. In the circumstances of the recent adjournment of the parenting issues, the court was satisfied that a just determination of these focused issues relating to the house was best achieved through facilitating the respondent’s participation in the trial. The court permitted the respondent to provide evidence as to his current income received by way of Employment Insurance sickness benefits. That said, the respondent is put on notice that full and complete financial disclosure will be critical to the just determination of the parenting issues and that he should not assume the court’s ongoing leniency in that regard.
[9] These reasons will explain why I have granted the relief sought by the applicant.
[10] The court listened carefully to the respondent’s evidence and understands his reasons for wanting to remain in possession of the house. However, the court has no jurisdiction to set aside the previous orders requiring the sale. In any event, I find there was, in fact, no agreement for the applicant to transfer her interest to the respondent as he asserts.
[11] Regrettably, the court also has no confidence that the respondent will cooperate in the sale of the house. The mortgage is again dangerously close to falling into arrears. The best evidence available at this trial demonstrates the parties cannot sustain these carrying costs and the house must be sold without further delay. Given his conduct in interfering with the sale, he must therefore vacate the house after a reasonable period in which to arrange for alternate accommodation. If he remains in possession of the house after the deadline, the applicant will have leave to obtain a writ of possession.
[12] The court’s determination of the distribution of the proceeds of the sale of the house remains under reserve.
Overview
[13] The court heard testimony from the applicant, her common law partner, an acquaintance of the parties, the real estate agent retained by the applicant to list the house, the respondent and the respondent’s adult daughter, T.P.
[14] The parties began their relationship in January 2014. They are unmarried. The applicant relied on Ontario Disability Support and the child tax benefit for her income. The respondent was employed as a labourer in a warehouse.
[15] In 2019, the parties bought the house as joint tenants at the address municipally known as 272 Wellington Street, St. Thomas, Ontario for the sum of $230,000.
[16] The respondent testified that he made the down payment for the house and that he was responsible for paying the mortgage. He claimed that the applicant’s name went on title as a gesture of commitment to their relationship. However, he acknowledged that the applicant took financial responsibility for all their other day-to-day expenses while his income was directed toward the down payment and financing. He also allowed that her ODSP income was used to increase their pre-approved financing so that they were able to purchase the house. She also paid for the house insurance from the date of purchase to date and took responsibility for groceries, gas for their vehicle and utilities from her ODSP income during their cohabitation.
[17] The parties separated in March 2021 when the applicant left the home with their two children in her care. The respondent changed the locks to the home after her departure. She first lived in an apartment in St. Thomas for several months and then with her mother in Scotland, Ontario. She then met her new partner and moved to Niagara Falls with the children in or about June 2023. They now reside together with the children in Fort Erie (although there is a current interim order prohibiting the applicant’s partner from residing with the children). Her relocation with the children became an issue in this proceeding, along with allegations of withholding the children from the respondent, which is contested.
[18] The respondent began to miss mortgage payments in or about June 2024. He ceased employment beginning in or about August 2024. The circumstances of his termination are unclear. He first described it was due to a work performance issue, but then claimed it was because the medications he required for anxiety caused by the applicant and this proceeding meant he could not work in the warehouse. The court received a physician’s note from December 2024 that described the respondent was struggling with medical issues that prevent him from working at this time. He has been in receipt of Employment Insurance sickness benefits since December 2024. His weekly benefit rate should be $602.00; however, child support payments are deducted by FRO, leaving him with a net weekly income of between $269 and $307. The respondent’s 22-year-old daughter and his granddaughter have been living with the respondent in the home. She does not pay rent.
[19] The bank notified the applicant of the mortgage arrears in the fall 2024. She was also not receiving child support from the applicant. Her new partner provided financial assistance to pay the arrears and bring the mortgage back into good standing. The applicant testified she became worried the bank would begin foreclosure proceedings. The respondent acknowledged he fell into arrears but explained it was only because of having to wait for sick leave benefits, which were then unexpectedly reduced due to FRO enforcement.
[20] By notice of motion dated November 13, 2024, the applicant brought a motion pursuant to the Partition Act for an order directing the sale of the home. The motion was to have been argued on December 30, 2024; however, was ultimately argued on January 31, 2025. By order of that same date, Justice Tobin granted the applicant’s motion and directed that the house be listed for sale within 30 days, with terms for the selection of the real estate agent, determination of the marketing strategy and the list price. The respondent was ordered to pay the applicant her costs of the motion in the amount of $1,000 to be paid from the respondent’s share of the net proceeds of the sale of the property.
[21] In the meantime, the mortgage came due for renewal. The respondent claims the applicant failed to cooperate such that the mortgage renewed on disadvantageous terms, with a six-month open mortgage at a 10% interest rate. The applicant testified that the respondent would not engage in any productive discussions regarding the house. The most recent information available to the court at trial indicates that as of February 2025, the outstanding mortgage balance was $193,037.36, with a six-month open term mortgage at a 10% interest rate, coming due at the end of May 2025 and requiring bi-weekly payments of $948.28.
[22] The home was not listed for sale as was ordered and the respondent again started to miss mortgage payments. The realtor testified that he attempted to arrange for a viewing of the house but that the respondent declined to allow him onto the property. Text messages between the realtor and respondent from February 2025 show the respondent would not engage in a discussion with the realtor. The respondent’s reasons for not allowing the realtor at attend the property included illness, the presence of the children and that he was planning to appeal the order. The respondent admits the authenticity of these messages.
[23] The respondent brought a motion seeking a “stay” of Justice Tobin’s order for the sale of the home. By order dated February 21, 2025, Justice Price dismissed the respondent’s motion without costs, noting that the court did not have jurisdiction to hear the respondent’s motion. This appears to be the only effort to appeal the order for the sale of the house.
[24] The applicant brought a further motion for directions to assist in the sale of the property, including terms that the respondent vacate the property by June 4, 2025. The motion first came before the court on April 4, 2025, at which time the respondent advised the court he was going to the bank that day to pay off the mortgage in full. Justice Price granted an adjournment of the motion to April 11, 2025, with direction that the respondent produce proof of payment of the mortgage in advance of the motion date.
[25] The motion proceeded on April 11, 2025. The respondent did not provide proof of payment of the mortgage he had represented to the court. Justice Tobin found that the respondent did not select a real estate agent as permitted by the order and did not permit the agent to enter the home. The court noted that the respondent had not offered a good reason not to continue with the sale and found that he should not be able to obstruct the listing and sale. Justice Tobin provided further directions for the sale, including that the realtor was to have access to the property for at least three hours on either a date to be agreed upon, or, on April 25, 2025, in the absence of an agreement. The necessity of the respondent’s signature on the listing agreement was dispensed with if he failed to sign in within 72 hours of it being provided to him. The respondent is to allow a sale sign to be posted and was to permit access to the property for showings on 24 hours notice. The applicant’s requested relief for vacant possession was adjourned to June 20, 2025, for an update as to whether the property was being actively marketed. The court ordered the respondent to further costs of $1,000, again to come from his share of the net proceeds of the sale.
[26] The respondent did not sign the listing agreement and his consent was accordingly dispensed with in accordance with the second order. Nevertheless, the realtor testified that there have been ongoing challenges in marketing the property. The walk through of the property took place on the ordered date of April 25, 2025, as the respondent would not consent to arrangements for an earlier meeting. The respondent also called police in an effort to stop the viewing. The respondent also claimed he would not permit photographs to be taken and threatened legal action.
[27] The realtor managed to prepare a listing of the property effective May 5, 2025, with a list price of $349,500. However, any further marketing efforts are on hold because of the respondent’s continued lack of cooperation. The realtor testified that the property is in rough shape. He advised it could be made more marketable at a higher list price in the range of $399,000 with some effort at clean up and staging. He explained the property would also be more marketable if the realtor could, in fact, show the property to prospective buyers. However, he had to decline three viewing in the previous two weeks because the respondent would not agree to accommodate the showing, as evidenced in text messages with the respondent. The respondent did not dispute that he had withheld permission for the showings, his rationale being that he was only being difficult because he wants to keep the house for his daughter and grandchild. In the realtor’s view, the sale of the home requires a fresh start, with the property being cleaned up, staged, and marketed at a higher price, with ready availability for viewings.
Assessment
[28] There are two court orders requiring the property to be listed and marketed for sale with the respondent’s cooperation. While the respondent disagrees with the court-ordered sale, he has not managed to appeal either order. He nevertheless persists in maintaining that there was either an agreement that the applicant would transfer her interest to the respondent in exchange for his release of his dispute to her relocation and withholding of the children, or alternatively, he claims that he has a plan for refinancing the mortgage nearly ready to go. These positions are not only internally inconsistent, but they also amount to an improper collateral attack on the orders of the court.
[29] Orders are mandatory, they are not suggestions which a party has the option to disregard. Absent an appeal or appropriate variation by the court, orders must be followed. The respondent’s conduct is vexatious and must stop. An ongoing failure to follow these orders risks the court having to consider serious consequences for the respondent including costs, a striking of his answer and to and including a finding of contempt, with possible exposure to penalties such as imprisonment.
[30] In any event, I find that it is abundantly clear from the evidence at trial that the parties never reached any agreement for the transfer of the applicant’s interest to the respondent. The applicant acknowledges that following their initial separation, she expressed that she would be content to relinquish her interest in the property if the respondent would leave her alone. She explained that she subsequently changed her mind, particularly when she came to understand her ongoing liabilities in respect of the property. She was willing to negotiate the respondent’s purchase of her interest; however, those discussions never progressed in a meaningful way beyond his expectation that she would transfer her interest for no consideration.
[31] The respondent insisted the parties achieved “judicially supervised” agreement at a settlement conference in July 2024 before Justice Hassan. There is no evidence of such an agreement that would be either admissible or effective pursuant to rules 17(19) and (23) of the Family Law Rules. At most, the endorsement from that appearance expressed some optimism for, but did not recognize the existence of an agreement between the parties regarding the disposition of the jointly held property. There was certainly no agreement reached at the conference that was signed by the parties and witnessed: r. 17(19).
[32] There is also no compelling evidence that the respondent is ready and able to purchase the applicant’s interest in the home or that he is otherwise able to refinance the property. The respondent has known for at least the past year that the applicant wanted to either sell the property or to have her interest purchased. In February 2025, he secured an adjournment of the motion on the representation that he would be paying off the mortgage that day. This did not occur. The respondent gave no explanation at trial as to why this plan did not materialize. At trial, he claimed that he has plans nearly ready to go that would allow him to remain in possession of the home. This would involve his brother moving in with him and paying rent; and possibly also borrowing money from an uncle. However, he was not able to provide any details of such a plan, including the amount of rent that would be paid or how much money his family were prepared to lend him. He claimed it would not be realistic to plan such details in the face of this trial. The court does not discourage the respondent from continuing to explore such options so that he can made a bid for the purchase of the house. However, this does not mean that he can stall the listing or interfere with the marketing of the house while a “wait and see” approach for these plans might materialize. He has already had several months to make such plans a reality.
[33] The respondent has been previously told by the court that he is entitled to make an offer on the property. The respondent appears to have misconstrued this as a right to hold up the listing of the property. This is not the case. He simply has the right to make an offer to buy the listed property on the open market. In any event, he has not made an offer and he has not offered any concrete evidence of a viable plan to obtain financing that the court might consider when determining the continued timetable for the sale of the property. The respondent seems to believe that refinancing and making an offer to purchase the home requires the applicant to “sit down” with him and “figure it out.” While it would be up to the applicant as to whether she accepted an offer and to sign the transfer, the court otherwise fails to see why the applicant’s participation is required in the respondent’s efforts to refinance the house for his benefit.
[34] The sale of the jointly held home is inevitable. The applicant cannot afford the mortgage payments and carrying costs on her ODSP and child tax benefit income. The arrears were only brought into good standing through payments by her new common law partner. The respondent has been unemployed since August 2024 and is in receipt of very modest sick leave benefits because of FRO enforcement. By his own admission, the respondent has been struggling to keep up with the mortgage payments, having missed mortgage payments in January and February 2025. He claims that he will be able to return to work soon. The court hopes the respondent will be able to resume work and return to financial independence; however, the sale of the home cannot wait for this possibility.
[35] The respondent made several emotional appeals that the house not be sold as it would leave him, his daughter and granddaughter homeless. His daughter testified she would be able to live with her child’s father. The court understands the respondent’s wish to retain the house for the benefit of his children; however, the reality is that the mortgage is in jeopardy and overall carrying costs unsustainable on the parties’ limited incomes. The respondent has had several months to search for and plan alternative accommodations. His share of the net proceeds of the sale of the house should enable him to secure housing. To that end, it would be in his interests to cooperate in the sale so as to maximize sale price and to avoid further cost sanctions coming from his share of the net proceeds.
[36] I find the respondent is pursuing an ill-advised strategy to obstruct the sale of the property, with an unreasonable expectation that this conduct will somehow keep him in the house and preserve the home for his children. The court has no confidence that he will cooperate in the sale. His conduct in threatening lawsuits, declining showings, and resisting a sale is to the financial prejudice of both parties. He was frank in his testimony that he was refusing to cooperate in the sale because he was trying to keep the house.
[37] He has shown no insight or inclination to cooperate over these past three months since the first order to sell the house was made. If anything, his conduct has become more desperate and intransigent since the second order was made on April 11, 2025. I am satisfied it is therefore necessary for the respondent to vacate the house within three weeks (21 days) of this order so that the sale can proceed in an orderly and efficient manner, and where the property can be appropriately prepared and actively marketed with a goal of maximizing the equity for both parties. In light of his recent conduct, I am also satisfied that the applicant’s request for leave to obtain a Writ of Possession to assist in the respondent’s departure from the premises is unfortunately necessary.
[38] The following order shall therefore issue, without the need for the respondent’s approval as to form and content:
- Leave is granted to hear the property issues on this Application pursuant to s. 21.9 of the Courts of Justice Act.
- Pursuant to section 3 of the Partition Act: a. The Respondent, Chad Parish, shall vacate the property located at 272 Wellington Street, St. Thomas, Ontario (“the Home”) within 21 days of the date of this Order. b. If the Respondent does not vacate the Home within 21 days of the date of this Order, the Applicant, Cindy Lee Ann Cayen, is granted leave to obtain a Writ of Possession for the property and house located at 272 Wellington Street, St. Thomas, Ontario. c. Paragraph (c) of the Order of Justice Tobin dated April 11, 2025, shall be varied to read as follows: “The parties shall accept the first reasonable offer presented. A reasonable offer is one that is within 5% of the listing price. Consent and/or a signature of the Respondent is dispensed with for the purposes of accepting an offer within 5% of the listing price.” d. The parties must agree on a real estate lawyer to conduct the sale transaction of the Home within 14 days. If the parties cannot agree on a real estate lawyer within 14 days, the Applicant may select a lawyer of her choosing to complete the sale transaction of the Home.
[39] If not already addressed, the return date of June 20, 2025 of the applicant’s motion for further directions on sale of the house is vacated.
[40] The distribution of the proceeds of the sale of 272 Wellington Street remains under reserve with the court. Costs will be addressed following the court’s release of its decision as to the distribution of the sale proceeds.
Justice Frances M. Tranquilli
Released: May 27, 2025