Reasons for Decision

Court File No.: FS-24-39
Date: 2025/06/30
Ontario Superior Court of Justice
Between:
Shawna Leigh Etches (Mitchell), Applicant
– and –
Drew David Mitchell, Respondent

Applicant Counsel: M. Young
Respondent Counsel: L. Sangster
Heard: May 30, 2025
Released: June 30, 2025
Judge: M.G. Ellies

Overview

[1] I have competing motions before me.

[2] In his amended notice of motion, the respondent seeks an order for exclusive possession of the jointly-owned matrimonial home located in Callander. He also seeks an order that the home be transferred to him on terms that would require him to relieve the applicant from liability for the debts currently secured against the home and to place the sum of $40,000 in trust or to pay the same into court to secure any equalization payment he may owe to the applicant.

[3] In her notice of motion, the applicant seeks an order for the partition and sale of the matrimonial home under the Partition Act, R.S.O. 1990, c. P.4.

[4] For the following reasons, the applicant’s motion is granted, although not all of it.

Background

[5] The parties began living together in April 2015. They were married in June 2018 and separated in June 2023. They have one child, “RJ”, who is presently 11 years old. RJ was placed in their care in 2019 and was adopted by them in 2021.

[6] RJ has been diagnosed with attention-deficit/hyperactivity disorder (“ADHD”) and an attachment disorder. She began seeing a therapist before the parties separated and is still seeing one.

[7] Following the parties’ separation, the respondent remained in the matrimonial home. The applicant moved into a property owned by her parents. She now resides with a male partner.

[8] Based on the submissions of counsel, the parties enjoy week-about parenting time with RJ. While the applicant has her parenting time, the child resides with the applicant. While the respondent has his, the child resides with him in the former matrimonial home.

[9] RJ presently attends grade six in a French education program. She will graduate this month and will be required to change schools to begin grade seven, regardless of the outcome of the parties’ competing motions. The parties are not able to agree on whether she should continue in a French education program or begin a French immersion program in the fall. However, they have agreed to defer a decision on that issue for the time being.

Issues

[10] In support of his motion, the respondent submits that RJ requires stability and that, therefore, an order for exclusive possession is in RJ’s best interests. He submits that he is in a position to buy out the applicant’s interest in the jointly-owned home and that the court can make an order under the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”), transferring the applicant’s interest in the home to him.

[11] The applicant opposes the respondent’s request. She submits that she is entitled to an order for partition and sale of her interest in the matrimonial home and that the respondent has not established that such an order will prejudice any claim he might have under the FLA relating to the home or to the equalization of net family property (“NFP”). Instead, the respondent seeks an order for exclusive possession of the home for the purpose of selling it and seeks complete control over the sale process. She also seeks an order either that the sale proceeds be held in trust after paying the costs of disposition and discharging the joint debts, or that the remaining proceeds then be split equally between the parties.

[12] I will address the issues arising from the parties’ positions by first addressing those raised by the respondent. However, before I do that, I will address an issue that was not raised by either party, namely, what is the effect of the final nature of the relief requested by both parties in their motions.

Analysis

What is the effect of the final nature of the relief requested in the motions?

[13] The respondent's motion does not indicate whether the orders he seeks are temporary or final. However, at least as the motion relates to the transfer of the matrimonial home into his name only, the relief requested in the respondent's motion is, by its nature, final. So, too, is the relief requested by the applicant in her motion.

[14] Because of the final nature of the relief requested in the parties’ motions, both motions are, in essence, motions for summary judgment. Although the applicant's notice of motion does include a request that it be treated as a motion for summary judgment “if necessary”, neither party addressed this issue in their submissions. The issue is not one of mere formality; it has substantive consequences.

[15] Under r. 16(6) of the Family Law Rules, O. Reg. 114/99, the onus on a motion for summary judgment is to show that there is no genuine issue requiring a trial. Thus, it has been held that, where a Partition Act application is brought within a family law proceeding, the moving party must demonstrate that there is no sufficient reason why it should not be made: see Walter v. Walter (1992); Kereluk v. Kereluk; Goldman v. Kurdeyla, 2011 ONSC 2718, para 20. Further, under r. 16, once that has been shown, the court is required to make a final order.

[16] With respect, at least in the circumstances of this case, I would not go so far as to impose the burden imposed in cases like Walter when it comes to a motion for partition and sale under the Partition Act. Sections 2 and 3(1) of the Partition Act provide:

2 All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.

3 (1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.

[17] The leading case on the interaction of the Partition Act with the FLA is Silva v. Silva (1990). In Silva, the Court of Appeal traced the history of the Partition Act and concluded, at para. 15, that while courts have discretion to refuse an order for partition and sale, that discretion is limited to “cases where the applicant [has] behaved maliciously, oppressively, or with a vexatious intent toward the respondent.” See also Latcham v. Latcham (2002), para 2.

[18] While I agree with the judges in the cases referred to above that orders for the sale of the matrimonial home should not be made as a matter of course, I believe that maintaining the onus on the resisting party to show why the order should not be made is more in keeping with the Court of Appeal’s decision in Silva, where Finlayson J.A. wrote, on behalf of the court, at para. 23:

In my opinion, it is wrong to say … that the F.L.A. ousts the jurisdiction of the Partition Act when dealing with jointly[-]owned spousal property. The two statutes are not incompatible, but where substantial rights in relation to jointly owned spousal property are likely to be jeopardized by an order for partition and sale, an application under the Partition Act should be deferred until the matter is decided under the F.L.A. Putting it more broadly, an application under s. 2 should not proceed where it can be shown that it would prejudice the rights of either spouse under the F.L.A.

[19] Cases decided since Silva have held that the rights under the FLA of which the court spoke in Silva include a valid claim for exclusive possession of the matrimonial home or a claim for an equalization payment that might be tied to the paying party’s interest in the home: Goldman v. Kurdeyla, 2011 ONSC 2718, para 19. As well, where the time to trial is short, that may also weigh against making an interim order on a motion for partition and sale: Goldman, at para. 19.

[20] These cases have required that the party resisting the motion for an order for partition and sale demonstrate a prima facie case that he or she is entitled to a competing order under the FLA: Goldman, at para. 18. In the present case, however, both parties are seeking what amount to final orders. Therefore, I believe it is appropriate to determine the merits of each motion on a final, rather than on a prima facie, basis.

[21] Moreover, neither party has objected to the relief sought by the other on the grounds that it ought to have been requested as a summary judgment motion under r. 16, rather than a regular motion under r. 14. I can understand why. Summary judgment motions are usually long motions, which require that a special date be set. The wait time for long motions dates at our site is unreasonably long. The parties in this case need a decision regarding the matrimonial home as soon as possible because of the potential impact of the motions on their child's schooling.

[22] In these circumstances, regardless of whether the motions ought to have been brought under r. 16, I would exercise my discretion under r. 1(7.2) to promote the primary objective under r. 2(2) of dealing with cases justly by dispensing with formal compliance with r. 16. However, I would not like to be seen as endorsing the use of r. 14 in circumstances where r. 16 can and should be used.

[23] I turn now to the respondent's submissions that he should be given exclusive possession of the matrimonial home and that the court should order that the home be transferred into his name only.

Should the respondent be given exclusive possession of the matrimonial home?

[24] Section 24(1)(b) of the FLA gives the court the power to order that one spouse have exclusive possession of a matrimonial home, regardless of who owns the home or its contents. In determining whether to make an order for exclusive possession, s. 24(3) directs the court to consider a number of factors, four of which are relevant here:

1. the best interests of the children affected (s. 24(3)(a));
2. the financial positions of both spouses (s. 24(3)(c));
3. the availability of other suitable and affordable accommodation (s. 24(3)(e)); and
4. any violence committed by a spouse against the other spouse or the children (s. 24(3)(f)).

[25] Although I have listed the relevant factors in the order in which they appear in the FLA, I will deal with them in the opposite order. This is because I believe that the facts in this case make each factor less relevant as one proceeds through the section.

Violence

[26] The applicant alleges that the respondent forced her to leave the matrimonial home “due to the very abusive nature” of the respondent towards the child and the applicant. The applicant’s allegation stops there – no details have been provided in support of it. The respondent vehemently denies this allegation and points out that he has never been charged with any criminal offence.

[27] In these circumstances, I am not prepared to consider the applicant’s allegation as a factor with respect to the issue of the exclusive possession of the matrimonial home.

The availability of other suitable accommodation

[28] The applicant contends that she is not able to purchase another home until she receives the equalization payment to which she believes she is entitled. I am not persuaded that this is the case.

[29] The applicant has deposed that she wanted to buy the respondent out of the matrimonial home after separation and “qualified” to do so based on an appraisal that suggested the value of the home was $625,000. In light of the applicant’s apparent ability to borrow money, I am not persuaded that she is unable to afford other suitable accommodation at this point in time.

The financial position of both spouses

[30] According to the applicant, the matrimonial home is likely worth something in the range of $625,000, although she also deposes that a home located in the same area recently sold for approximately $720,000.

[31] The respondent values the matrimonial home at only $600,000. However, the applicant deposes that the respondent has not allowed anyone to conduct a full appraisal of the matrimonial home by examining both the interior and exterior of the home. The respondent does not dispute this. Instead, he explains that he has not allowed an appraiser inside the matrimonial home because he was concerned that the applicant would not disclose all of the home’s shortcomings and that, therefore, it would be appraised at a higher value than what it is worth. This, of course, would then increase the value of the applicant's equity in the home and would either reduce the amount of any equalization payment she might have to make, or increase the amount of any such payment that must be made by the respondent.

[32] While their figures with respect to the value of the matrimonial home differ, the parties both indicate in their net family property (“NFP”) statements that there is a mortgage owing in the amount of approximately $245,000 as of the date of separation. In addition, there is a line of credit secured against the home in the approximate amount of $135,000. Thus, the total equity in the matrimonial home may range from roughly $220,000 to $245,000, or possibly higher.

[33] Although the matrimonial home is owned jointly, both parties filed NFP statements in which they calculated the NFP based on the respondent keeping the matrimonial home and being solely responsible for the mortgage, the secured line of credit, and an unsecured line of credit. At the time of separation, the unsecured line of credit was in the amount of approximately $10,000. However, both parties agree that the respondent ran the line of credit up to the maximum allowable of $40,000 after the parties separated.[1]

[34] Based on the scenario where the respondent keeps the matrimonial home and bears responsibility for the joint debts listed above as they existed at the time of separation, the respondent calculates that the applicant will owe him an equalization payment of roughly $24,500. Based on the same scenario, the applicant calculates that the respondent will owe her roughly $38,500. The main reason for the disparity lies in the respondent’s claim that the applicant’s employment pension should be valued using the date of cohabitation, rather than the date of marriage, based on principles of unjust enrichment.

[35] The respondent proposes that, should the court make an order transferring the matrimonial home into his name only, he would pay the sum of $40,000 either into court or into a lawyer’s trust account. The funds would be held there pending a final determination of the equalization issue. This, the respondent submits, will ensure that the applicant’s equalization claim is not prejudiced if he gets the matrimonial home.

[36] There are at least two problems with the respondent’s proposal. I will deal with one of them in this part of my reasons. I will deal with the other one when I address the respondent’s argument that the court has the power to order that the applicant’s interest in the matrimonial home be transferred to him in this motion.

[37] The first problem with the respondent’s proposal is that it is based on a value for the matrimonial home of $600,000. As discussed, there is evidence that it may be worth more than that. If so, a $40,000 trust payment would not be sufficient. I am not persuaded on the evidence that the respondent would qualify for financing of the home if its value significantly exceeds $600,000.

[38] I turn now to what I believe is the most important factor in this case relating to the respondent’s request for exclusive possession.

The best interests of the child

[39] While this is but one factor to be considered in each case, it is an important one, if not the most important. As the Court of Appeal recently repeated in Kirby v. Wood, 2025 ONCA 437, para 9, quoting Benotto J.A. in Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 at para. 58, “[w]henever a child is affected by a court or government process, the primary consideration must be the child's best interests.”

[40] Rule 24(4) provides that:

In determining the best interests of a child, the court shall consider, (a) the possible disruptive effects on the child of a move to other accommodation; and (b) the child's views and preferences, if they can reasonably be ascertained.

[41] Only the first factor has been raised in the motions before me. With respect to that factor, the respondent submits that RJ’s ADHD and attachment disorders would best be accommodated by awarding him exclusive possession of the matrimonial home. Again, I am not persuaded on the evidence that this is so.

[42] In addition to relying on his own opinion about the issue, to which I will return shortly, the respondent relies on two other sources of information. One of them is the opinion of Sharon Chayka, a counsellor who was seeing RJ both before and after the parties’ separation. Sadly, Ms. Chayka passed away some years ago and RJ is now seeing another counsellor. The respondent deposes that Ms. Chayka recommended that the parties give RJ as consistent a life with as few changes as possible. However, I cannot imagine that a counsellor would give any different advice about the effects of a separation on any child, regardless of that child's particular challenges.

[43] The respondent also relies on the diagnosis of ADHD and attachment disorder made on May 30, 2022, by Dr. Jeffrey Phillips, a clinical psychologist. However, the report by Dr. Phillips of that date contains no recommendation that RJ not be subjected to change. For that reason, counsel for the respondent urges me to go further and to consider Internet sources such as the website for Johns Hopkins University in Baltimore, Maryland. He urges me to rely on these sources as evidence of the particular features of RJ's diagnosis.

[44] With respect, I am not prepared to do that. While hearsay is admissible on a motion, the closer the hearsay evidence is to being dispositive of an important issue, the more important it is that the evidence not be hearsay: Jacobson v. Atlas Copco Canada Inc., 2015 ONSC 4, paras 27-35. Not only would the evidence urged upon me by counsel for the respondent be unsworn hearsay evidence on a potentially dispositive issue, but it would also be expert hearsay evidence. For that reason, I am not prepared to consider it.

[45] In any event, the respondent’s position that RJ’s best interests require that the respondent be given exclusive possession of the matrimonial home is significantly undermined by the respondent’s own actions. The applicant deposes that the respondent refused to agree to a nesting arrangement, in which each party would exercise his or her parenting time in the matrimonial home while the other party resides elsewhere. Although the respondent was careful to respond to allegations like the one relating to his refusal to allow a proper appraisal of the matrimonial home to take place, he made no response to the applicant’s nesting allegation. I therefore accept the allegation as true.

[46] If, in fact, the respondent really believed that it is in RJ’s best interest to limit change, I would have expected him to agree to a nesting arrangement. He did not. Instead, RJ presently spends the applicant’s parenting time with the applicant at her place of residence. As the respondent himself deposes, this change has not affected RJ at all. Indeed, she is doing better at school now than she was before the separation. The change, including the back-and-forth, does not seem to have affected RJ whatsoever.

[47] For these reasons, the child’s best interests do not weigh in favour of an order that the respondent have exclusive possession of the matrimonial home. As I have explained, nor do any of the other factors set out in s. 24(3) of the FLA. Therefore, there is no basis upon which to give the respondent exclusive possession of the matrimonial home.

Does the court have the power to order that the matrimonial home be transferred into the respondent’s name only?

[48] I turn now to the second problem with the respondent’s proposal that he be given the matrimonial home in exchange for assuming the joint debts and depositing money into trust, namely, that the court has no power to make the order requested.

[49] The respondent deposes that, before he can secure the financing necessary to put his plan into effect, he needs an order that the matrimonial home be transferred into his name only. On his behalf, counsel argues that such an order can be made under s. 9(1)(d)(i) of the FLA, which provides:

9. (1) In an application under s. 7 [for equalization of net family property], the court may order, (d) that, if appropriate to satisfy an obligation imposed by the order, (i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years,

[50] In support of his submission, counsel has referred me to several cases. However, only one of them deals directly with the scope of a court’s power under s. 9(1)(d)(i) of the FLA. That case is Chaudry v. Chaudry, 2012 ONSC 2149. Chaudry does not help the respondent.

[51] In Chaudry, the applicant resisted an order for the partition and sale of a jointly-owned matrimonial home on the basis that it would prejudice her ability to obtain an order under s. 9(1)(d)(i). The motion judge held, at para. 24, that the applicant had “not established on a prima facie basis that she will be entitled to invoke the provisions of FLA section 9(1)(d) after the equalization payment owing to her has been determined”. Thus, the motion judge in Chaudry read s. 9(1)(d)(i) in the same way that I do, namely, that an order can only be made under s. 9(1)(d)(i) after the amount of the equalization payment has been determined. This was also the ruling in Shouldice v. Shouldice, 2015 ONSC 1948, para 7, additional reasons at 2015 ONSC 2340.

[52] Of course, the amount of the equalization payment in this case has not yet been determined. Nor has the identity of the payor. Therefore, the court has no power to make an order transferring the applicant’s interest in the matrimonial home to the respondent. As the respondent concedes, nor does the court have the power to make such an order under the Partition Act: Martin v. Martin (1992), paras 27-32.

[53] I would add that, although not raised as an issue by the respondent, I have considered whether an order for the sale of the matrimonial home would prejudice the respondent’s equalization claim after it has been determined. Given the respondent’s submission that the most the applicant might owe him is approximately $24,500 and the applicant’s evidence that she previously qualified to buy the respondent out of the home, I am not concerned that the respondent would need to apply under s. 9(1)(d)(i) to secure the equalization payment to which he might be entitled, once that has been determined.

Conclusion

[54] For the foregoing reasons, I find that the respondent has failed to establish that an order for the sale of the matrimonial home would prejudice his claim to exclusive possession of the home or for an order transferring the applicant’s share in the matrimonial home to him.

[55] However, I do agree with the respondent that the applicant has failed to establish that she needs exclusive possession of the home and exclusive control over the listing process in order to conduct the sale. Now that the respondent’s claim for exclusive possession has been dismissed, it will be in the best interests of both parties that the matrimonial home sell for as much as is possible.

[56] Therefore, the parties shall immediately list the home for sale now that the 2024-2025 school year is finished. The home shall be listed at the price suggested by the listing agent. If the parties cannot agree on a listing agent within three days of the release of these reasons, they shall each appoint their own agent and the two appointed agents shall agree on a third agent, who shall be the listing agent. If the two retained agents have not agreed on a listing agent within 10 days of the release of these reasons, the court will appoint an agent of its own choosing, without further submissions.

[57] The applicant and the respondent shall cooperate with all reasonable requests relating to appraising the home, listing it for sale, showing it, and completing the transaction. If an appraisal is necessary, the parties shall contribute equally to that cost and shall each be reimbursed from the sale proceeds. Once sold, the proceeds of sale remaining after paying the costs of disposition shall be used to pay the joint debts secured against the home. The remaining funds shall be held in trust by the Tremblay Law Firm, as agreed between the parties, pending further written agreement of the parties or further order of the court.

Costs

[58] Counsel were asked during a hearing of the motions what they would seek for costs if their clients were successful. Both sides agreed on costs of $5,000, all-inclusive, if awarded on a full indemnity basis, and $3,500, if awarded on a partial indemnity basis.

[59] I see no reason to award costs on a full indemnity basis. With respect to partial indemnity costs, while the applicant succeeded at obtaining an order for the sale of the matrimonial home, she failed to obtain an order for exclusive control of the sale. In these circumstances, I believe that it is appropriate to award the applicant attenuated costs in the amount of $2,000, all-inclusive, and I so order. These costs may also be paid out of the proceeds of sale of the matrimonial home.

M.G. Ellies
Released: June 30, 2025

[1] The respondent says he did this to keep the applicant from doing the same. The applicant says that the respondent plans on using the additional funds to help finance the purchase of her interest in the matrimonial home.