Court File and Parties
Court File No.: FS-24-69-00 Date: 2025-08-27 Superior Court of Justice – Ontario
Re: Brandon Aaron Vernon Samuel Brown, Applicant And: Fallon Rae Cody, Respondent
Before: Brochu J.
Counsel: B. White, for the Applicant D. Kropp, for the Respondent
Heard: August 22, 2025
Endorsement on Motion
Overview
[1] The Applicant, Mr. Brown, brings a motion for the sale of the matrimonial home and other collateral reliefs associated with the sale, including holding and disbursing part of the sale proceeds.
[2] The Respondent, Ms. Cody, brings a motion for child and spousal support. She is also seeking that the court set the parties' respective incomes for the purpose of support. An order for complete financial disclosure is also being sought.
[3] Ms. Cody is requesting a dismissal of Mr. Brown's motion for the sale of the matrimonial home.
[4] They are both seeking an order for the parties to refrain from making disparaging comments regarding one another.
[5] The parties were married on October 31, 2009, in Alberta. They moved to Kenora in April 2017 and purchased the matrimonial home. They separated on June 22, 2024. However, they both remained in the matrimonial home until April 29, 2025, when Mr. Brown moved out.
[6] The parties have one son, age 13. The child has special needs, including autism, a learning disability, and ADHD. He also has significant behavioral issues and is prone to violent outbursts. The parties disagree on his level of functioning.
[7] This is a high conflict matter.
[8] The parties are currently following a 2 week on/off parenting-schedule. This is based on an interim agreement reached through ADR.
[9] As is the case in many matters involving motions for temporary reliefs, the parties have filed competing affidavits. They do not agree on much, and both attempt to cast doubt on each other's affidavits. For example, Mr. Brown is even questioning the validity of medical records filed by Ms. Cody, and is questioning the seriousness of a potential diagnosis, or at least an investigation by doctors into a prognosis of cancer.
[10] It should also be noted that the affidavits were replete with irrelevant information, that was not useful to the court in determining the issues in these motions. All they did was add substantial time to review these materials. I mentioned this at the beginning of the motion, and even with my warning, counsel persisted in continuing with references to information that was inflammatory during arguments.
Sale of the Matrimonial Home
[11] It is agreed and the law is clear that a joint tenant has a prima facie right to an order for the partition or sale of property held with another joint tenant.
[12] The applicable legal principles have been succinctly set out in Brose v. Brose, 2025 ONSC 2858 ("Brose"), at paras. 31-33 and Dhaliwal v. Dhaliwal, 2020 ONSC 3971 ("Dhaliwal"), at para. 16.
[13] In order to avoid the sale, the party opposing the sale must show malicious, vexatious, or oppressive conduct relating to the partition and sale issue.
[14] Counsel for Ms. Cody advances that Mr. Brown's conduct has been malicious, vexatious or oppressive. In this regard, it is argued that Mr. Brown's motive is revenge, that he is vindictive, and that he seeks to punish Ms. Cody for having an extra-marital affair. It was also advanced that Mr. Brown made improper use and report to authorities, including many calls to OPP and child services, in an attempt to control and gain the upper hand in this matter.
[15] On the other hand, counsel for Mr. Brown argues that the request to sell the home is financially driven and has nothing to do with the acrimonious separation. It is advanced that Mr. Brown had to leave the home because Ms. Cody made it unbearable for him to live there. It is alleged that Ms. Cody's behavior, while they were sharing the home, resulted in him having to leave and find alternate accommodations as a security measure.
[16] In my view, it is likely a bit of both - maliciousness and finances.
[17] I would also state that I have yet to preside over a matter where parties continue to live amicably in the home after separation. These are difficult times for a family, individuals can often act irrationally, uncharacteristically, and it usually ends by intensifying the already volatile atmosphere in the home.
[18] Irrespective of the motive of these parties, there are other factors that a court is to consider when deciding, prior to trial, on the sale of a matrimonial home. In this regard, the court has stated that an application under s. 2 of the Partition Act should not proceed if it can be shown that it would prejudice the rights of either spouse under the Family Law Act. The burden of proof rests with the party alleging such prejudice and opposing the application. Orders for the sale of a matrimonial home made before the resolution of FLA issues (particularly the determination of the equalization payment) should not be made as a matter of course: see Brose, at paras. 31-33; Dhaliwal, at para. 16.
[19] On the other hand, the court has also indicated that it is not fair that a party hold the property "hostage". And in circumstances where a sale is the inevitable result at trial, there may be little justification for delaying it: see Brose, at para. 34(g).
[20] There is no question that neither of the parties can afford this home on their own and that it will eventually have to be sold. However, in my view, to do so at this time would not be in the best interests of the child. This is a child with high needs. Both parents agree that he requires structure and stability. This has finally been established, to a certain extent, with the present arrangement.
[21] I am not sure that it would be as easy as Mr. Brown seems to think for the parties to find alternate accommodation.
[22] Ms. Cody has indicated that there is a one year wait list for subsidized housing in Kenora. And the market for home purchasers is sparse.
[23] I should note that even if I were to grant the request for the sale of the matrimonial home, I would not have been in a position to make the order requested as it relates to the sale proceeds. The parties have not agreed on an equalization yet, there is a live issue of spousal support, and there is also a dispute as to whether there was a verbal loan agreement between the parties and Ms. Cody's parents. Without an order from the court or agreement between the parties, which is highly unlikely to be achieved, the sale proceeds would likely remain in trust until a court order or an agreement, as such would be required by the real estate lawyer.
[24] Considering this, the parties would be left in no better financial situation, other than not having the mortgage and associated expenses to pay. However, they would be no further ahead in being able to purchase another home. It would be especially detrimental for Ms. Cody, who would find herself without a home, and potentially little resources to purchase and/or even rent accommodations. She is presently on medical leave, and it is unclear as to what her income sources are and will be in the upcoming future.
[25] Given the circumstances of this case, it could also be that the sale of the home would result in a prejudice under the FLA. The parties have not agreed on equalization, and there is some question regarding Mr. Brown's pensions or other work benefits/plans. At this stage, it is not clear that there would be no prejudice should the sale of the home be ordered.
[26] There is also the looming issue of Ms. Cody's request for relocation.
[27] Should the home be sold now, there is a high risk of instability for the parties, especially Ms. Cody, and the child. Not only that, but it may mean several moves, requiring more than one period of adjustment, on an interim basis, for a child that needs structure.
[28] I will address below why I am not making a temporary order for spousal support. With that in mind, I find that it would be reasonable for the parties to continue sharing the expenses for the home. This can be taken into account by the trial judge when addressing all of the outstanding claims and issues, on a full and complete record.
[29] Consequently, Mr. Brown and Ms. Cody shall continue to pay equally their share of the mortgage, home insurance, property taxes and maintenance. Ms. Cody shall provide Mr. Brown with a copy of the property tax and insurance bill, upon receipt of same. Ms. Cody will be solely responsible to pay for the utilities.
Spousal Support
[30] On a temporary motion, the support claimant is required to establish a prima facie case for entitlement: see Politis v. Politis, 2015 ONSC 5997 ("Politis"), at para. 15. Politis also reviews the principles applicable to an interim motion for spousal support at para. 14.
[31] The parties do not agree on what the parties' respective incomes should be for the purpose of spousal and child support.
[32] Mr. Brown has conceded that his anticipated income for 2025 will be higher than in 2024 and estimated at approximately $68,000. Counsel for Ms. Cody indicated that it may be a bit higher than that.
[33] Ms. Cody's 2024 income was $43,955.39. I note from a review of her 2024 income tax report that she will also receive in 2025 the following annual benefits: Canada carbon rebate of $1,008, GST/HST credit of $882.00, provincial tax credit of $1,232.89 and child tax benefit of $10,030.00. It is unknown at this time whether she will qualify and receive any benefits while on medical leave. Counsel for Mr. Brown further stated that it is believed that Ms. Cody is also receiving ODSP benefits for the child.
[34] Needless to say, both parties are alleging incomplete financial disclosure and lack of transparency.
[35] Considering my decision regarding the sale of the matrimonial home and the disputed issues in this matter, the issue of spousal support is best left for determination along with all other issues by the trial judge. This is a matter wherein the issue of spousal support requires an in-depth analysis, and not something that can be properly determined at a motion, based on contentious and competing affidavits, when it is impossible to decide and ascertain issues of credibility.
[36] It would also be improper in my view to calculate spousal support in this matter before equalization of the net family property, since one of the factors to consider are the means of the parties.
[37] In assessing the appropriateness of a temporary spousal support award, consideration should be given to the payment by the parties of joint debts. Given that Mr. Brown will have to pay an equal share of the mortgage, property tax, and insurance for the home, this reduces the means of Mr. Brown and reduces the needs of Ms. Cody.
[38] It should also be noted that I have taken into consideration all the following issues in arriving to this decision: the issue of the sale of the home, disbursement of the sale proceeds, equalization, the issue of the relocation of Ms. Cody, spousal support, medical issues of Ms. Cody, whether income should be imputed, the unresolved health issues of Ms. Cody, and the best interests of the child.
[39] Furthermore, Ms. Cody will continue to benefit by being able to remain in the matrimonial home. And, Mr. Brown will have to continue paying his share of expenses towards the matrimonial home.
[40] I strongly encourage the parties to attempt to negotiate with the bank, in the interim, to minimize the interest presently being paid on the mortgage. This would be to their benefit.
Child Support
[41] Mr. Brown has conceded that his anticipated income for 2025 will be higher than in 2024 at approximately $68,000. This would attract a child support obligation of $634.00 per month.
[42] Ms. Cody's 2024 income of $43,955.00, would attract a child support obligation of $406.00 per month.
[43] This would result in a set off amount to be paid by Mr. Brown to Ms. Cody of $228.00 for the child in accordance with the Federal CSG.
[44] I find that it is proper in these circumstances to utilize Ms. Cody's 2024 income for child support as opposed to a best guesstimate of what her 2025 income may be. There has been no information provided by Ms. Cody as to what she has earned to date this year from employment. It is also unknown whether she will receive some benefits while on medical leave. This is without prejudice to an adjustment on child support once these figures have been established, and to the parties retroactive and ongoing claims for child support.
Costs
[45] Given the divided success on these motions, the parties shall bear their own costs.
[46] I should also note that I was not inclined to make an order for costs when both parties seem more interested in throwing around insults, belaboring irrelevant allegations, and accusations. Costs to either party would undoubtedly be viewed as an unjustified reward in these proceedings. The parties should focus on ensuring complete disclosure is made and moving this matter to a trial as expeditiously as possible.
Conclusion and Orders
[47] In summary, there will be no order for the sale of the matrimonial home.
[48] The parties shall continue to equally pay their share of the mortgage, home insurance, property taxes and maintenance for the matrimonial home. Ms. Cody shall provide Mr. Brown with a copy of the property tax and insurance bill, upon receipt of same. Any expenses for the maintenance of the matrimonial home shall be agreed to prior to being expended. Ms. Cody will solely be responsible to pay for the utilities for the matrimonial home.
[49] There will be no order for spousal support. This is without prejudice to Ms. Cody to advance her claim for retroactive and ongoing spousal support.
[50] Commencing on September 1, 2025, and on the first of each month thereafter, the Applicant, Brandon Brown, shall pay child support to the Respondent, Fallon Cody, in the amount of $228.00 per month, on an offset basis in consideration of the shared parenting schedule, for the child, Hendrix Maxwell Cody Brown, born February 22, 2012, in accordance with the Federal CSG.
[51] An order that both parties refrain from making disparaging or negative remarks to the child about the other party and discourage others from doing so in the presence of the child, and both parties refrain from making statements that may harm the other's reputation or credibility in the community.
[52] The parties shall exchange full and complete financial disclosure.
[53] The parties shall bear their own costs.
[54] This is a matter that needs to proceed to trial as soon as possible. Counsels for the parties are to reach out to the TC's office and schedule a TMC as soon as possible. They are to exchange and provide to the court a litigation timetable at the TMC.
[55] I am not seized of this matter, but if schedules permit, since I am familiar with the issues, it would be beneficial that I continue with the case management of this matter until parties are ready for trial.
Brochu J.
Date: August 27, 2025