Superior Court of Justice – Ontario
Court File No.: FS-24-00014501-0000
Date: 2025-01-21
Between:
Mark Robert Boniface, Applicant
and
Tamara Shannon Byron, Respondent
Before: Jennifer E. Bezaire
Counsel:
Meghan Harrogate, for the Applicant
Tamara Shannon Byron, acting in person
Heard: 2025-01-14
Endorsement
Motions Before the Court
[1] There were two motions before me:
a. Motion by the applicant, Mark Robert Boniface, for the sale of the jointly owned property, occupation rent, compensation for the improper conversion and sale of his personal property, and release of his possessions and chattels.
b. Motion by the respondent, Tamara Shannon Byron, for an order that the applicant provide financial disclosure and dismissal/adjournment of the applicant’s motion.
[2] I previously released an endorsement dated January 14, 2025 addressing the respondent’s motion for financial disclosure. I also ordered that the applicant’s motion proceed as scheduled but advised that I would consider the respondent’s submissions regarding prejudice as part of the applicant’s motion.
[3] This is my Ruling with respect to the applicant’s motion.
Background
[4] The parties commenced a cohabitation relationship in or around September 2014. They disagree regarding the separation date. There are no children of their relationship.
[5] In or around 2017, the parties jointly purchased property, located at 61 Ebenezer Street West, Ridgetown, Ontario (the “Property”). Both their names are on title. The applicant believes the Property has a value of approximately $400,000, although no appraisal was done. It is unencumbered.
[6] The applicant left the Property upon separation. He is employed as a general contractor and resides in Kitchener, Ontario. Throughout the parties’ relationship, he worked as both an employed and self-employed contractor.
[7] The respondent continues to reside at the Property. While no affidavit evidence was submitted regarding her current work status, she advised at the hearing of the motion that as of approximately October 25, 2024, she has been employed as a wheelchair accessible driver for InTouch Connection. She works just over 44 hours per week and earns $19.34 per hour.
[8] The respondent also has her own dog grooming business operated out of a facility she and the applicant built on the Property in 2023. She does dog grooming in the evenings and on weekends. She was diagnosed with rheumatoid arthritis, which she submits impacts her ability to work. By working in her own business, she can modify her schedule as needed to accommodate her disability.
[9] The underlying application was commenced on or around March 11, 2024. The applicant claims relief that includes the relief sought on this motion. In her Answer dated April 24, 2024, the respondent disputes the applicant’s claims and makes her own claims, including for spousal support, unjust enrichment, and joint family venture.
[10] A Case Conference was held on June 3, 2024. A Settlement Conference was held on January 6, 2025, but could not be completed due to the outstanding motions.
[11] The crux of the respondent’s constructive trust and joint family venture claims is that she put her dog grooming business on hold to help the applicant build his business, Trade Master Contracting. She submits that it was a jointly run business and that the applicant paid her an allowance of $1,000 per week. In addition to registering the Trade Master name, she performed work for the business, including labour. She did not have dog grooming customers until in or around August 2023 following the construction of the dog grooming facility.
[12] The applicant denies the respondent’s claims. He submits that the respondent was operating her dog grooming business out of a rental building when the parties first met but ceased her operation because of a dispute with her landlord. Thereafter, she consistently operated her business from home ramping it up and down as needed, while also working in other positions outside the home. He claims she provided dog grooming services for cash such that her income tax returns are not reflective of her actual income.
[13] The applicant denies that the respondent was involved in Trade Master Contracting. She only assisted with the registration of the name. She did not work in the business, and was not an employee or owner.
Analysis
(a) Sale of the Jointly Owned Property
[14] At para. 16 of Dhaliwal v. Dhaliwal, 2020 ONSC 3971, Pazaratz J. set out the applicable legal principles, which are summarized below without citations:
- Section 2 of the Partition Act empowers the court to order the sale of a jointly owned property, including a matrimonial home.
- A joint tenant has a prima facie right to an order for the partition or sale of property held with another joint tenant.
- A court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made.
- 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. 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.
- Each case must be considered on its own facts.
- 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. 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.
- 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.
- 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.
- 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.
- Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course.
- Timing can be a relevant factor. The party opposing a sale must establish a likely negative impact more serious than the inevitable adjustments and disruptions which all families face when people separate.
[15] Per rr. 66.02 and 66.03, an order for partition and sale must be in Form 66A. All money realized from the sale shall forthwith be paid into court unless the parties agree otherwise. No money shall be distributed or paid out except by order of a judge or, on reference, the referee: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, c. 66.02 and 66.03.
[16] As the party opposing the sale, the respondent bears the burden to satisfy the court on a balance of probabilities that there is sufficient reason for the court to exercise its discretion to refuse a sale. I find that she has not met her burden.
[17] The respondent submits that she would be unfairly prejudiced if a sale were ordered because:
a. the applicant has not yet made full financial disclosure such that it remains unknown if she will be able to purchase his interest in the Property;
b. the respondent’s claims of unjust enrichment and joint family venture may result in the respondent receiving the entirety of the Property and should therefore be resolved first; and
c. the sale of the Property would detrimentally impact the respondent’s dog grooming business and ability to support herself.
[18] While I accept that the applicant has not made full financial disclosure as noted in my January 14, 2025 endorsement, he has made significant disclosure. The outstanding documents and information will not, in my view, significantly impact the outcome of this proceeding. They relate to a boat of which the respondent is already aware and accounts that appear to be closed.
[19] I accept that there may be some basis for the respondent's concerns that the applicant will dissipate his assets and/or negatively impact her ability to collect on a judgement. It appears from the evidence that the applicant took the funds accumulated in Trade Master Contracting, as well as the financial records of the business. He terminated the respondent's access to the business’ QuickBooks records and now curiously claims they are no longer available for production. The respondent also submits that the applicant transferred a truck to his son for $0 and made threats to declare bankruptcy to avoid paying her.
[20] I accept that the respondent is a vulnerable spouse. The parties had a long-term relationship in which the applicant appears to have held the money and power. He had his business which appears to have done well. In contrast, the respondent was not working full-time and had health issues. If the respondent’s evidence is accepted, her dog grooming business was also in its infancy. The applicant’s departure from the relationship put the respondent in a difficult situation – she could no longer share in his income and had to take over the carrying costs of the Property. No spousal support has been paid to date.
[21] To the respondent’s credit, she has now secured full-time employment. This employment will not be impacted if the Property is sold. I do not, therefore, accept the respondent’s submission that a sale would detrimentally impact her ability to earn a living. Her dog grooming business is no longer her main source of income and if given some time and money, her business can be relocated.
[22] Further, the respondent’s concerns regarding the applicant dissipating his assets, and her collecting on her unjust enrichment and joint family venture claims, can be addressed by the respondent’s share of the sale proceeds of the Property being held in trust pending resolution or further agreement. This would protect the respondent’s ability to recover that to which she is ultimately entitled.
[23] The respondent has resided at the Property for nearly a year post-separation. No evidence was presented that she made efforts to purchase the applicant’s interest or has any ability to do so. The applicant expresses concerns with the respondent moving this proceeding forward if she is allowed to remain at the Property. While I do not find the applicant’s concerns at the present time to be well founded given the delays and issues with the applicant’s disclosure, I agree that the separation of the parties’ jointly held assets is necessary to move this matter forward and allow the parties to move on with their lives.
[24] I understand that the respondent does not want to relocate, but this is an unfortunate consequence of separation. There are affordable rental accommodations in the Chatham area that the respondent can explore. With there being no chance of reconciliation and nearly a year having passed, it is time that the parties move on with their lives.
[25] For these reasons and after considering the potential impacts of a sale of the Property, I order that the Property be sold pursuant to the Partition Act (Ontario), with a Reference to the Superior Court of Justice at Chatham, Ontario, regarding the conduct of the sale. I shall remain seized for the purpose of this Reference and the following terms shall apply.
a. The respondent shall be provided with 90 days from the date of this Order to attempt to negotiate a purchase of the applicant’s interest in the Property and/or to find alternate accommodations and relocate her dog grooming business.
b. If the parties are unable to reach an agreement regarding the respondent’s purchase of the applicant’s interest in the Property, the Property shall be immediately thereafter listed for sale.
c. A case conference is set for 9:00 am on March 5, 2025 before myself to discuss the conduct of the sale, including the listing agent and access to the Property for the purposes of creating the listing. If the parties are not available at this date or time, they may contact Trial Coordination to reschedule the Case Conference to an alternate 9:00 am slot before me.
[26] Further, I order that the entirety of the applicant’s share of the net proceeds of sale shall be held in trust pending further order of the court or agreement of the parties. I find this to be necessary given the income disparity between the parties and to protect the respondent’s ability to recover on her claims.
[27] Given the financial vulnerability of the respondent and likely need for her to relocate her business, 75 percent of the respondent's share of the net proceeds of sale shall be paid to her upon closing. The remaining balance shall remain in trust pending further order of the court or agreement of the parties.
(b) Occupation Rent
[28] The court has jurisdiction to award occupation rent where it is equitable and reasonable to do so: Erb v. Erb, para 73.
[29] The factors to be considered include the following, with the weight to be assigned to each at the discretion of the court:
a. The timing of the claim for occupation rent;
b. The duration of the occupancy;
c. The inability of the non-resident spouse to realize on his or her equity in the property; and
d. Any reasonable credits to be set off against occupation rent; any other competing claims in the litigation.
(Griffiths v. Zambosco, para 49)
[30] As set out in Higgins v. Higgins, paras 53-55, occupation rent is not awarded as of right. Rather, it is a tool that can be used to achieve justice in the circumstances of each case. Additional factors that may be relevant include:
a. The conduct of the non-occupying spouse, including the failure to pay support;
b. The conduct of the occupying spouse, including the failure to pay support;
c. Delay in making the claim;
d. The extent to which the non-occupying spouse has been prevented from having access to his or her equity in the home;
e. Whether the non-occupying spouse moved for the sale of the home and, if not, why not;
f. Whether the occupying spouse paid the mortgage and other carrying costs of the home;
g. Whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support;
h. Whether the occupying spouse has increased the selling value of the property;
i. Ouster is not required, as once was thought in some early decisions.
[31] The burden is on the applicant to satisfy the court that occupation rent is appropriate in the circumstances. I find that the applicant has not met his burden.
[32] I accept that the applicant’s claim was made as part of his application, the respondent resided at the Property for nearly one year post separation, and the equity has been tied up in the Property. But it is important to note that the respondent has exclusively paid all carrying costs of the Property. The applicant has not been contributing to these costs.
[33] I do not see this as a case where occupation rent ought to be ordered to achieve justice. The applicant held the power and money in this relationship. The respondent was effectively cut off on the date of separation and has been doing her best to support herself and manage her expenses.
[34] Further and per my order with respect to the sale of the Property, the respondent will need to negotiate the purchase of the applicant’s interest in the Property and/or find alternate accommodations and relocate her dog grooming business. Adding a requirement to pay occupation rent on top of this would further, and in my view, unfairly, hinder the respondent’s ability to support herself.
[35] There is no evidence before me that the applicant is in dire financial straits or needs the rent to support himself. He left the relationship with his business and is currently employed. He also had substantial funds to purchase a new boat and invest in GICs.
[36] Accordingly, I find there to be no need or justification for occupation rent in the circumstances of this case. The Property will soon be sold and/or purchased by the respondent such that the respondent’s exclusive possession of the jointly held asset will soon come to an end.
(c) Return of the Applicant’s Personal Possessions
[37] Some of the applicant’s possessions remain at the Property in the control of the respondent. Following separation, the applicant made efforts to remove these possessions, but claims the respondent prevented him from doing so. He also claims the respondent listed some of his possessions for sale on social media (i.e., his guitars).
[38] The respondent denies these allegations. She submits that the applicant took items that belong to her and damaged the Property. She further submits that the items advertised for sale were her personal items, and not the applicant’s items. She still has the applicant’s guitars.
[39] The applicant provided a list of possessions he requests be returned to him (attached as Schedule A). He identified on his list those possessions he claims he obtained prior to the relationship and those he claims were obtained during the relationship.
[40] With respect to the list provided, the respondent advises that:
a. she does not have the applicant’s Indian doll in glass case. It was damaged during the move.
b. she does not have the applicant’s key fobs. She does not know what happened to them.
c. she purchased the pressure washer. She would like to keep it. No evidence was, however, provided on the motion of her purchase.
[41] With respect to the remaining items, the respondent agrees to return the smaller, less expensive items, but objects to returning the “big ticket” items, including the boat and ATVs, because she fears the applicant will dissipate them to avoid judgment. She claims the applicant threatened to do just that and transferred ownership of his truck to his son for $0. He also took money from the business, as well as all the business records.
[42] I see no basis for the respondent to maintain the applicant’s personal possessions. She does not need them as “leverage” or to collect on a judgment. They can be listed and valued on the applicant’s financial statement and factored into equalization. Further, by holding the applicant’s share of the sale proceeds of the Property in trust, the respondent’s ability to collect on a judgment is protected.
[43] I, therefore, order that all items listed on the attached Schedule A that are in the respondent’s possession, other than the pressure washer, be returned to the applicant within 30 days. The applicant shall ensure that the items are listed on his updated financial statement and included for the purpose of equalization. If the respondent has any concerns regarding the value of these items, she may obtain an appraisal prior to returning the items.
[44] With respect to the pressure washer, the evidence is not clear as to who it belongs. The applicant says it is his, while the respondent says she purchased it. I do not have sufficient evidence to determine this issue and as such, it shall remain with the respondent pending further order of this court.
[45] If the respondent subsequently locates the applicant’s fob keys, she shall return them to him forthwith.
[46] The respondent made submissions during the hearing of the motion that the applicant took her business records and other personal belongings. If the applicant is in possession of the respondent’s personal possessions, he shall similarly return them to her within 30 days of this endorsement.
Disposition
[47] In summary and for the reasons noted above, I order as follows:
a. The Property shall be sold pursuant to the Partition Act (Ontario), with a Reference to the Superior Court of Justice at Chatham, Ontario, regarding the conduct of the sale. I shall remain seized for the purpose of this Reference and the following terms shall apply.
i. The respondent shall be provided with 90 days from the date of this Order to attempt to negotiate a purchase of the applicant’s interest in the Property and/or to find alternate accommodations and relocate her dog grooming business.
ii. If the parties are unable to reach an agreement regarding the respondent’s purchase of the applicant’s interest in the Property, the Property shall be immediately thereafter listed for sale.
iii. A case conference is set for 9:00 a.m. on March 5, 2025 before myself to discuss the conduct of the sale, including the listing agent and access to the Property for the purposes of creating the listing. If the parties are not available at this date or time, they may contact Trial Coordination to reschedule the Case Conference to an alternate 9:00 a.m. slot before me.
b. Subject to further Order of the Court or agreement of the parties, the applicant’s share of the net proceeds of sale of the Property, after the deduction of the court-approved expenses and realtor fees, shall be held in trust pending resolution of this proceeding.
c. Subject to further Order of the Court or agreement of the parties, 75 percent of the respondent’s share of the net proceeds of sale of the Property, after the deduction of the court-approved expenses and realtor fees, shall be paid to the respondent. The remaining balance shall be held in trust pending resolution of this proceeding.
d. The respondent shall return all items listed at Schedule A hereto which are in her possession, other than the pressure washer, within 30 days of this endorsement. If the respondent has any concerns regarding the value of the items returned, she may obtain an appraisal of these items prior to returning them to the applicant.
e. If the respondent locates the applicant’s fob keys, she shall return them to the applicant forthwith.
f. The applicant shall list the items returned on his updated financial statement and they shall be included for the purposes of equalization.
g. The balance of the applicant’s motion, including his claim for occupation rent, shall be dismissed.
[48] I ask that counsel for the applicant kindly provide me with a draft order for review and approval.
[49] I encourage the parties to agree upon the issue of costs. Given success was divided on the motion, I am presumptively of the view that costs should be paid in the cause, but if the parties are unable to resolve this issue, they may each make written costs submissions (not to exceed three pages, double spaced) within 30 days of this endorsement.
Jennifer E. Bezaire
Date: January 21, 2025