Court File and Parties

Court File No.: FS-23-00037801

Date: August 22, 2025

Ontario Superior Court of Justice

Between:

Devinder Gill – Applicant

– and –

Sulinder Kaur Gill – Respondent

Counsel:

Pam Hundal, for the Applicant

Sage Harvey, for the Respondent

Heard: July 31, 2025

Pinto J.

Reasons for Decision on Motions

Overview

[1] The parties were married for 42 years before they separated in April 2021. They have five adult children. They are both retired. The husband is now 70 years old. The wife is 66.

[2] The applicant husband brings a motion for the partition and sale of the parties' jointly owned matrimonial properties located at 1394 Gerrard Street East and 1396 Gerrard Street East in Toronto (the "Properties") under the Family Law Act, R.S.O. 1990, c. F.3.

[3] The respondent wife separately brings a motion for financial disclosure.

[4] For the reasons that follow, I grant the husband's motion for the partition and sale of the properties and dismiss the wife's disclosure motion without prejudice to her bringing the motion back on proper notice to the husband.

Background

[5] The parties were married on July 25, 1978 in the United Kingdom. They immigrated to Canada in 1982. They separated on April 7, 2021, in the context of the respondent alleging that the applicant physically assaulted and threatened her. The respondent was charged criminally. He was acquitted of all charges on May 23, 2025, following a trial in the Ontario Court of Justice.

[6] After the separation, and due to the outstanding criminal charges, the husband moved out of the properties. He lives with one of the parties' sons in Ottawa. The wife continues to reside alone in the former matrimonial home, which is an apartment on the second floor at 1394 Gerrard Street. The other property at 1396 Gerrard Street is unoccupied. Following the separation, the wife has paid for the maintenance and upkeep of the properties. She has not leased out the premises, which are zoned for mixed commercial and residential use.

[7] In August 2023, the husband commenced an application for equalization, freezing of assets, partition, and sale of the properties, which are free of any mortgages or encumbrances.

[8] The wife did not file her Answer to the Application until May 23, 2025. Among other relief, she seeks exclusive possession of the properties, full disclosure, and unequal division of net family property.

Discussion

Are the parties permitted to bring their respective motions?

[9] Notwithstanding that the issues of disclosure and sale of the properties were conferenced at the Dispute Resolution Officer ("DRO") Case Conference on May 28, the DRO consent order only refers to the husband being entitled to bring his motion for partition and sale of the properties on July 31, 2025. I find that the wife's motion for disclosure should not have been brought on the same day as the partition motion. It was unrealistic for both motions to be heard on a single regular motion day. This does not mean, however, that the issue of the husband's alleged lack of disclosure is irrelevant to his motion for partition and sale of the properties. Accordingly, I have reviewed the wife's two affidavits dated July 23 and July 25, 2025, as she refers to both affidavits in opposition to the husband's partition motion. In the affidavits, the wife describes the husband's missing disclosure and his alleged misconduct both before and after separation.

Husband's Motion for Partition and Sale of the Properties

[10] The wife submits that granting the husband's motion would prejudice her family law rights, particularly her claim for exclusive possession. Further, she submits that because the husband has not made full and proper financial disclosure, including about foreign property in India, the outstanding equalization issues are sufficient to bar the partition and sale of the properties. She believes that the husband holds millions of dollars in undisclosed assets and bank accounts, including some held by family members to avoid asset division with her. She also argues that the forced sale of the properties would be oppressive and a hardship for her since she is a senior citizen with significant health challenges, including with her mobility. If she is forced to vacate the premises and move elsewhere, she states that she could potentially lose the services of her personal support worker. She is concerned that since her only current source of income is pension income of $1,842.74 a month, she could end up in unaffordable rental accommodation.

[11] In Dhaliwal v. Dhaliwal, 2020 ONSC 3971, 42 R.F.L. (8th) 321, at para. 16, Pazaratz J. summarized the applicable legal principles, which include the following:

(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; 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.

(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, 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, [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, 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, 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 (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).

[12] In applying the legal principles to the facts of this case, I find that the onus is on the wife to establish that there is sufficient reason to exercise my discretion to refuse the partition and sale of the properties. I find that the wife has not met this onus.

[13] The wife's affidavits are speculative. She states that the sale of the properties could prejudice her if the husband has properties in India, as transferring title of the properties could be the only way of satisfying an equalization claim, since an Ontario court cannot order the sale of any property in India.

[14] I do not find evidence of the husband's malicious, vexatious or oppressive conduct. The parties are a married couple who separated in April 2021, more than four years ago. There are no mortgages or encumbrances on the property. There are no child-related issues to consider regarding the sale. The parties are elderly. The wife is in poor health, and she has not made any commercial use of the properties in four years.

[15] I accept that the wife is a vulnerable spouse who has multiple disabilities. However, I disagree that another housing arrangement for the wife would be so challenging that it would destabilize her medical and personal support worker arrangements. Presumably, while the consequence of a sale of the properties would be that the proceeds would be placed in trust, the parties could agree on the release of some proceeds to assist with their living arrangements pending trial.

[16] The wife's July 23, 2025, affidavit indicates that the parties' marital home occupies 1/6 of the total area of the properties, the other 5/6 being commercial. Accepting this to be true, I find that it underscores the problem with permitting the wife to reside in a small part of the properties, while most of the area sits vacant, providing no commercial gain for the couple. Relatedly, the wife's financial statement indicates that her gross income for the previous year was $24,190.69, yet her combined housing and utilities costs are $46,260 per year. She alludes to the husband's lack of cooperation in enforcing tenancy agreements over the years, resulting in damages and financial losses, including HVAC issues and building code violations. The wife has not arranged for any commercial or residential income from the properties in over four years, while she has enjoyed sole possession. The property taxes of the properties are in default and accumulating debt. Permitting the status quo to continue makes little sense.

[17] The factor of timing does not support maintaining the status quo until trial, which may be a long way off. Although a settlement conference has been scheduled for November 10, 2025, this matter appears far from resolution. The husband was just acquitted of criminal assault charges three months ago. The wife characterizes the husband as determined to hide his assets and frustrate the financial resolution of the couple's affairs. She alleges that beyond the Gerrard Street properties, the husband beneficially owns assets in Brampton, Ottawa, and India. The Gerrard Street properties themselves are held through a corporation, which introduces another level of complexity in this family law proceeding. The wife alleges that the husband has failed to disclose the corporation's finances, yet she too is a co-owner, and it is not clear why she cannot contact the corporation's accountant herself.

[18] While I agree that there is some uncertainty as to the extent of the husband's assets, I find that the state of the husband's incomplete financial disclosure is not a reason to delay or deny the partition and sale of the properties. On May 9, 2025, the wife sent the husband a request for disclosure through counsel. On May 23, 2025, the wife followed up with a Request for Information ("RFI"). The parties attended a DRO Case Conference on May 28, 2025. The husband provided a response to the RFI on June 25, 2025. The wife characterizes the husband's response as completely inadequate, comprising select Notices of Assessment ("NOAs") and accounts, and an affidavit that was essentially "non-responsive" to the wife's questions. The wife sent further correspondence to the husband on July 11, 2025, through counsel outlining what disclosure remained outstanding. The wife deposes that the husband has not provided his income tax returns or documents to support his valuation date statements. The husband has filed two financial statements, one in 2023 and one in 2025. The husband has provided two Certificates of Financial Disclosure, one dated June 25, 2025, and the other dated July 24, 2025.

[19] The husband swore an affidavit dated July 24, 2025, concerning his updated disclosure. He deposed that, whereas he had previously submitted NOAs for both his personal and corporate tax returns in his June 25, 2025 certificate of disclosure, his full T1 and T2 returns were not available at that time. He subsequently contacted his accountant and obtained the complete set of T2 returns. As of July 24, 2025, he provided his T1 and T2 returns except for his T1 return for 2022. He deposed that he had been unable to reach his accountant and was waiting to receive this outstanding return from the Canada Revenue Agency. He would provide it as soon as it became available.

[20] My overall impression is that the husband has latterly provided more financial disclosure and documentation, albeit it is still not to the satisfaction of the wife. I do not consider the husband's purported lack of financial disclosure so inadequate that the husband's motion for partition and sale should not proceed based on his breach of the Family Law Rules. Neither do I find that his lack of disclosure is so severe that it represents material prejudice to the wife such that, on a discretionary basis, I should refuse the husband's motion.

Conclusion

[21] The husband's motion for the partition and sale of the Gerrard Street properties is allowed. The wife's motion for disclosure is dismissed without prejudice to her ability to bring the motion back on notice at a time that is mutually suitable to counsel. The parties shall forthwith send me a draft order in WORD format concerning the partition and sale in the form presented by the husband's counsel, except updated to reflect the disposition of the wife's disclosure motion.

[22] If counsel are unable to resolve the issue of costs, they shall submit cost submissions to me by September 12, 2025, which shall be no longer than three double-spaced pages excluding attachments such as Bills of Costs. The submissions shall be sent to my judicial assistant via email at Theresa.Finelli@ontario.ca.

Pinto J.

Released: August 22, 2025