Marinovic v. Marinovic, 2025 ONSC 3340

Court File No.: FS-23-00033957-0000
Date: 2025-05-30
Superior Court of Justice – Ontario
Applicant: Valerie Marinovic
Respondent: Daniel Marinovic
Before: Lise Mathen
Applicant Counsel: Alexandra Aquila, Joseph Slavec
Respondent Counsel: Self-Represented
Heard: 2025-05-29

Endorsement

Relief Sought

[1] The Applicant, Valerie, brings an urgent motion for, inter alia, the following relief:

a. The matrimonial home located at 43 Wilgar Road, Etobicoke, shall be listed for sale with Ms. Ana Santos of Harvey Kalles Real Estate Ltd.
b. The parties shall execute a listing agreement on or before June 10, 2025.
c. The parties shall follow the realtor’s recommendations for timing of the sale; listing price and any subsequent adjustments; and marketing and staging.
d. Neither party shall hinder or obstruct the sale of the property.
e. Valerie shall have exclusive possession of the home until it is sold.
f. Any disputes arising out of the foregoing terms may be resolvable by a short motion on notice.
g. Costs of this motion.

[2] The Respondent, Daniel, who was self-represented, says Valerie’s motion should be dismissed. He also seeks:

a. To be permitted to return and reside in the matrimonial home until the issue of possession is determined by final order.
b. To delay any sale for six months.
c. To refer issues of parenting time and decision-making responsibility to a further case conference or further motion.
d. To require the Applicant to deliver a comprehensive settlement proposal by June 15, 2025.
e. That no party shall pay costs.

[3] Valerie brought this motion on an urgent basis because Daniel indicated that he would return to the matrimonial home on or about May 28, 2025.

Issues and Brief Conclusion

[4] The issues are whether to order the partition and sale of the matrimonial home; whether either party should have exclusive possession until the sale; whether Daniel’s requests related to parenting and decision-making, and a settlement proposal, are properly before the court; and costs.

[5] The sale should go ahead. Valerie shall have exclusive possession. Daniel’s requests regarding parenting, decision-making and settlement are not proper subjects for this motion. Valerie is entitled to costs.

Background

[6] The parties married on October 23, 2004, and separated on July 4, 2022. They have three daughters who are 16, 14 and 9 years old. The children live primarily with Valerie.

[7] Valerie alleges that Daniel was “verbally, emotionally and psychologically abusive” to her and the children. Daniel denies this. He admits “a brief period of emotional and mental health struggle in 2021-2023…that has been fully addressed.” He says he left the matrimonial home on a temporary basis to stabilize. He says he was blindsided when Valerie filed for divorce.

[8] In late 2023, a section 30 parenting assessment raised numerous concerns about Daniel’s parenting ability. The assessor, Howard Hurwitz, recommended sole decision-making for Valerie and limited parenting time for Daniel, with no overnights. This arrangement was to be subject to review. Daniel disputes the thrust of the parenting assessment but says he has been complying with its recommendations.

[9] Daniel currently has parenting time for four hours on Wednesdays and Sundays.

[10] The parties disagree on whether they worked together in a business called Oakmount Asset Management Corporation (“Oakmount”). Daniel says they were true equal partners. Valerie says the business was largely managed by Daniel. The business encountered difficulties during the pandemic and suffered heavy losses. Daniel secured alternative employment with a company called KingSett Capital, but lost his job on April 11, 2025.

Lead-up to This Motion

[11] Daniel has wanted to sell the matrimonial home, which is heavily encumbered, since 2023. Daniel is currently paying the mortgage and the interest on a line of credit.

[12] On March 18, 2025, following a written motion, this Court issued a consent order under which:

a. A settlement conference scheduled for March 19, 2025 was adjourned sine die.
b. The parties would attend mediation beginning in April, 2025.
c. Daniel was entitled to bring a motion for sale of the matrimonial home, to be heard on May 19, 2025. Valerie would not argue either that the motion should be a long motion, or that it should await a motion she might bring for interim support.

[13] Daniel deposes that after he lost his job, he could no longer participate in mediation. He is “actively pursuing employment opportunities” but “without stable housing, [he] cannot fully function, focus, or restore [his] financial independence.”

[14] Daniel never brought the motion to force the sale of the home. He deposes that he changed his mind due to what he calls an uncertain market under which the house could take “years” to sell. He further objects to the sale of the matrimonial home under Valerie’s terms as they entrust major decisions to a listing agent unknown to him. Valerie says she chose an agent unknown to either party.

[15] Daniel currently resides with his elderly parents in their home, a situation he says is “unsustainable”. Following his job loss, he acknowledges, he told Valerie and her counsel that he intended to return to the matrimonial home to “rebuild” in order to “properly move forward as a family.”

[16] Valerie deposes that Daniel’s behaviour has been erratic. His plan to move in is unacceptable. His behaviour is causing her and their children great distress. She brought this motion solely due to his intention to move back in. She also believes that the matrimonial home should be sold.

The Law

[17] The “primary objective” of the Family Law Rules, O. Reg 114/99 is to enable the court to deal with cases justly having regard to, among other things: ensuring that the process is fair to all parties; saving expense and time; and dealing with a case in ways that are appropriate to its importance and complexity: Rule 2.

[18] Under section 23 of the Family Law Act, RSO 1990, c F.3:

The court may, on the application of a spouse or person having an interest in property, by order…

(b) authorize the disposition or encumbrance of the matrimonial home if the court finds that the spouse whose consent is required…

(iii) is unreasonably withholding consent,

subject to any conditions, including provision of other comparable accommodation or payment in place of it, that the court considers appropriate[.]

[19] Section 24 of the FLA provides for one spouse to be granted exclusive possession of the matrimonial home. In making such an order, the Court shall consider the following factors (section 24(3)):

a. the best interests of the children affected;
b. any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;
c. the financial position of both spouses;
d. any written agreement between the parties;
e. the availability of other suitable and affordable accommodation; and
f. any violence committed by a spouse against the other spouse or the children.

[20] In assessing the best interests of the children, the court must consider: the possible disruptive effects on a child of a move; and the child’s views and preferences if they can be ascertained: FLA section 24(4).

[21] “Violence” is not limited to physical assault but can include verbal and other forms of behaviour: Manson-Sillery v. Sillery, 2021 ONSC 8538 at para 30.

Analysis

Sale of the Matrimonial Home

[22] Daniel sought and received leave to bring a motion for the sale of the matrimonial home.

[23] Valerie deposed that as recently as May 26, 2025, Daniel said in response to her stated intention to bring a motion for exclusive possession that he would have “no choice” but to seek its sale.

[24] Valerie now agrees to the sale. It is Daniel who opposes the sale of the home, wishing to delay it for at least six months.

[25] He also objects to the choice of realtor, and to have to abide by her recommendations. Daniel did not offer any alternative terms for the sale. At the hearing, however, he appeared to concede that the home will have to be sold at some point.

[26] Daniel’s position is somewhat contradictory as he cites the enormous funds required to maintain the home, while arguing that selling the home now would be “destabilizing”.

[27] I appreciate that Daniel’s arguments around the sale are intertwined with his arguments about exclusive possession. But it is necessary to keep the two issues separate.

[28] Daniel argues that the children should not be forced to leave their school district. This is speculative, as it is unknown where the parties will live if the home is sold.

[29] When he was seeking to sell the home in the past, Daniel argued that spring is a favorable season to do so. His statements now about it possibly taking “years” to sell the property are speculative.

[30] Because the home is heavily encumbered, its realizable equity is unknown at this time. That, however, is not a reason to delay a sale. Markets go up and down. There is as much risk to a delayed sale as an immediate one.

[31] I find that Daniel has not provided sufficient explanation for his sudden change of heart about the home. I am puzzled about his shifting positions. Daniel threatened to bring a motion for sale as recently as this week. I think that he assumed that Valerie would find the prospect so unappealing that she would drop her motion for exclusive possession. Instead, Valerie agreed to the sale.

[32] I therefore find that Daniel is withholding his consent unreasonably such that, under section 23(b)(iii) of the FLA, it is appropriate to order the sale.

[33] Given that Daniel did not offer any alternative proposals to the sale, an order shall issue on the terms Valerie proposed.

[34] The net proceeds of the home shall be held in trust pending the consent of the parties to its release, or subject to further court order.

Exclusive Possession

[35] The parties both appear to agree that the best interests of the children is the most important factor in determining exclusive possession. I will turn to that shortly.

[36] For completeness, on a balance of probabilities I make the following findings regarding the other factors enumerated in section 24(3) of the Family Law Act:

b. There are no existing orders under Part I of the Act, no existing support orders, and no other enforceable support obligations.
c. The financial positions of both parties appear to be tenuous. Daniel earned more than Valerie during the marriage but is currently unemployed. He says that he is in final job discussions with a global executive search firm specializing in real estate. He currently has access to over a hundred thousand dollars consisting of his severance from KingSett, and his share of the proceeds of Oakmount.
d. The parties do not have a written agreement about who should stay in the home.
e. Related to factor (c), Daniel has more suitable alternative accommodation than Valerie. Daniel currently lives with his parents. He describes the situation as dire, saying he is sleeping on a mattress in the basement. While the situation is no doubt trying, I am not persuaded that it is significant enough to be determinative. Valerie is caring for three children. In addition, she does not wish to remain in the home indefinitely, as she wants to list it by June 10.
f. I will address violence in my discussion of the best interests of the children.

[37] I find that it is in the children’s best interests that Valerie have exclusive possession of the home.

[38] First, since separation Valerie has been the primary caregiver for the children, in the matrimonial home. This indicates that stability for the children is best preserved by maintaining their presence in the matrimonial home for as long as possible: Menchella v. Menchella, 2012 ONSC 1861, paras 16-18.

[39] Second, Daniel is not requesting that he be given exclusive possession of the home. He wants to move back in with the family. For the following reasons, I find that inappropriate:

a. I accept Valerie’s evidence that, several times in recent weeks, Daniel has behaved erratically. This is all related to his determination to move back in. He has shown up at the home several times, texted Valerie dozens or perhaps hundreds of times, attempted to get one of the children’s keys to gain entry, and read aloud to the children a letter letting them know of his plan and his reasons for it. I find the latter event problematic and not child focused. It drew the children directly into the conflict and was poor judgment on Daniel’s part.

b. While I am not prepared on this motion to decide whether Daniel’s actions constitute “violence”, I am persuaded that he has on occasion behaved in an inappropriate manner that would tend to make anyone feel pressured and threatened. I am persuaded that Valerie does feel that way. I am also persuaded that the children have been exposed to parental conflict causing them significant distress.

[40] I am persuaded that Daniel believes that he and Valerie can still reconcile. At the hearing, he repeatedly said they have met many times, suggesting that Valerie is open to repairing the breach in the relationship. Given Valerie’s affidavit, I find it more likely than not that Daniel is misreading the situation. I understand that he is desperate to reunite his family. That is not something that he is entitled to pursue at all costs, and certainly not at the expense of Valerie’s wishes or the children’s well-being.

[41] I find it more likely than not that the children do not want Daniel to move back in. I accept Valerie’s affidavit evidence that the children have acted in ways that show their upset at Daniel’s recent actions. This is consistent with some of the observations by Howard Hurwitz in 2023. I appreciate that some time has elapsed since this report, which reflects a period that Daniel was in crisis. Yet, the observations track the current evidence. They also are consistent with Daniel’s arguments on the motion, which fixate on the idea that returning to the home would somehow “stabilize” things. I cannot speak to whether returning to the home would be stabilizing for Daniel, but his needs are not the focus here. There is no reliable evidence before the court that his return would be in the children’s best interests. What evidence exists shows that a return would be contrary to those interests.

[42] Therefore, I find that Valerie has established on a balance of probabilities that it is appropriate to make an order of exclusive possession until such time as the house is sold. In order to clarify that this order is temporary, it shall be subject to further court order.

Daniel’s Other Requests

[43] Daniel requested leave to either conference or decide by motion additional issues of parenting and decision-making. After hearing his submissions, I am satisfied that this was the result of a misunderstanding of the Rules. The issues of parenting and decision-making have already been conferenced. Therefore, either party may bring a motion for interim relief in regard to those issues.

[44] Daniel also asked for an order requiring Valerie to deliver to him a comprehensive settlement proposal by June 15, 2025. That is not an appropriate request for this motion. The court cannot force a party to make a proposal.

[45] The parties remain under a consent order to attend mediation by a specific date. While that date has passed, the obligation remains. The parties must think of what would benefit their children.

Costs

[46] Valerie seeks full indemnity costs. Daniel asks that no costs be paid.

[47] One of the purposes of costs is to sanction unreasonable or wasteful behaviour. Daniel behaved unreasonably in changing his position, this week, about whether to sell the home. Much of this motion was wasteful.

[48] Valerie prevailed on the merits. Her total costs are $16,449.88. I find it appropriate to award her substantial indemnity costs of $12,337.48.

Order

[49] Valerie’s motion is granted. Her Draft Order submitted for the motion is hereby endorsed subject to the following additions:

a. The net proceeds of sale of the matrimonial home shall be held in trust by the real estate solicitor to be disbursed only (a) with the written consent of both parties, or (b) subject to further court order.
b. The order for exclusive possession of the matrimonial home is subject to further court order.
c. Costs are payable to the Applicant fixed at $12,337.48 inclusive of disbursements and HST.

Lise Mathen
Date: 2025-05-30