Court File and Parties
Court File No.: FS-22-102320 Date: 2025-11-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DANA-PAULA CARINGI Applicant
- and -
MAURO CARINGI et al Respondents
Counsel
David Sherr, for the Applicant
Elissa Gamus and Yashika Dhall, for the Respondent Mauro Caringi
Kristen Normandin, for the Respondent Aletta Brown
Hearing and Decision
HEARD: September 19, 2025
RULING ON MOTION
Wilkinson J.
Endorsement
Introduction
[1] The Respondent Husband brings a motion for partition and sale of the matrimonial home located at 1504 Trotwood Avenue, in Mississauga, Ontario. He submits that he requires his equity in the matrimonial home to pay his legal expenses, including a retainer for the upcoming trial in this matter, scheduled for January 2026. The Husband also submits that he requires his equity from the matrimonial home to continue making support payments to the Applicant Wife.
[2] The Wife opposes the Husband's motion for partition and sale. She maintains that the payments owed to her by the Husband for equalization of net family property and spousal support surpass his 50 percent share of the equity in the matrimonial home. She further submits that because she seeks exclusive possession of the matrimonial home and a vesting order, it is prejudicial to her to permit the sale to proceed, as these claims would be defeated by a sale of the property.
[3] For the reasons that follow, the Husband's motion for partition and sale of the matrimonial home is dismissed.
Background
[4] The parties were involved in a long-term marriage, of either 28 or 29 years, depending upon which party's version of the date of separation is ultimately accepted. Both parties have since re-partnered.
[5] The parties have three adult children. Two live independently. The youngest child plays professional hockey in Europe, but has historically resided with the Applicant Wife in the matrimonial home when he returns to Canada. I have no direct evidence from the son as to where he intends to live at the end of the current season.
[6] The Wife has been paying for the upkeep and maintenance of the matrimonial home since the date of separation. The Husband has been making monthly payments towards a small $20,000 line of credit that is currently registered against the home.
[7] The parties argued a motion before Justice Mandhane on September 8, 2025 relating to disclosure issues. In her decision released on September 9, 2025, Justice Mandhane agreed with the Husband that he has made sufficient financial disclosure to the Wife.
[8] Neither party cross-examined the other on their affidavit evidence prior to the motion being argued.
Issues to be Determined
[9] The primary issues to be determined are:
i) Has the Wife made out a prima facie case for the transfer of the home to satisfy her claims for spousal support and/or equalization made against the Husband?
ii) Has the Wife established that she will be prejudiced if a sale of the matrimonial home is ordered?
iii) Is the Wife precluded from resisting a partition and sale motion when she sought this relief in her application?
Position of the Husband
[10] The Husband submits that he has made appropriate financial disclosure to the Wife as found by Justice Mandhane, and that he is not hiding any income or assets. He argues that the Wife's response to his motion is an attempt to re-litigate the disclosure issues already determined by Justice Mandhane, and that the Wife's response to his motion is therefore an abuse of process.
[11] The Husband further submits that the parties do not agree upon the value of the matrimonial home. He argues that the only way to resolve this issue is to sell the home to determine its value. The Husband provided a valuation which assessed the home's value at between $1.23 million and $1.33 million. Since there is only a small line of credit on the home, the Husband submits that his equity in the home is approximately $600,000. The Wife did not provide a valuation for the home.
[12] The Husband also provided affidavit evidence that he is required to provide his lawyer with a retainer of $250,000 plus HST for the upcoming trial, and that the Wife does not need to live in a five-bedroom home by herself.
[13] The Husband argues that it is unfair to him to require him to use his RRSP savings to fund the trial which will trigger tax consequences for him, when the funds from the sale of the matrimonial home will flow to the parties on a tax-free basis. Further, he argues that even if he chose to cash out his RRSP to pay the required retainer, the net value of his RRSP is insufficient to pay the amount required.
[14] The Husband disputes that the Wife's claims against him have value, as he argues that he has overpaid spousal support, and further, that he has already provided an advance payment of $113,000 to the Wife pursuant to the September 18, 2023 order of Justice Shaw. He therefore argues that it will not be prejudicial to the Wife to allow the matrimonial home to be sold.
[15] The Husband also argues that in her application the Wife requested partition and sale of the matrimonial home, which establishes her agreement that the property should be sold.
[16] The Husband further submits that because there has been no determination that he owes the Wife any payment for equalization or support, it is premature to consider if a vesting order is applicable in this case.
[17] The Husband also claims that since he has overpaid spousal support, $150,000 of the Wife's net proceeds of the sale of the matrimonial home ought to be retained in trust to address his overpayment.
Position of the Wife
[18] The Wife takes the position that the Husband's motion for partition and sale should be dismissed. She submits that she has provided sufficient evidence to make out a prima facie case to establish that a vesting order should be granted to satisfy the equalization payment and/or retroactive spousal support payment owed to her by the Husband.
[19] The Wife claims that the Husband has been historically evasive with his financial disclosure. In support of her claims for spousal support and an equalization payment owed to her, the Wife relied upon the following evidence:
a) The Husband has received over $2,000,000 since November 2018 that is not included in his taxable income or net family property statement. The Husband takes the position that these deposits are not relevant to the issues of equalization or spousal support, as they occurred post-separation. He further argues that these amounts are not relevant to the Wife's claims as they relate primarily to financial payments made by a wealthy friend, Lucio Di Iorio, for the purpose of the Husband's car racing hobby, or are reimbursements from his employer;
b) The Husband included $760,000 in stock options in a recent Financial Statement, that he now deposes he does not own. He also deposed that he included the value of these stock options on a recent Financial Statement in error;
c) In his affidavit dated one week before the motion was heard, the Husband deposed that the value of his RRSPs was only $25,757.16 net (taxed at 50 percent), but at the oral hearing, his counsel stated that the Husband had inadvertently failed to mention RRSPs that he held with Great West Life, valued at $364,000 gross ($182,000 net taxed at 50 percent) in his motion materials; and
d) In a Financial Statement sworn March 18, 2022, the Husband stated that he earned $305,134 the previous year. His amended tax return for 2023 reflects an income of $327,372.02. However, in his affidavit he projects his income for 2025 to be $180,000.
[20] The Wife relies upon s.12 of the Family Law Act, R.S.O. 1990, c. F.3, which authorizes the court to make orders restraining the depletion of a spouse's property and to preserve property. She argues that her rights under s.12 must be protected notwithstanding ss. 2 and 3 of the Partition Act, R.S.O. 1990, c. P.4.
[21] The Wife submits that she has presented a prima facie case for an equalization payment and/or spousal support award that will exceed the Husband's 50 percent equity interest in the matrimonial home. She also submits that the Husband has not disclosed sufficient assets to satisfy these awards should she be successful at trial, which will cause her prejudice if the matrimonial home is sold in advance of the trial.
[22] In her application, the Wife made claims for exclusive possession of the matrimonial home and a vesting order. She submits that these claims will be defeated if the home is sold, which is prejudicial to her.
[23] The Wife further submits that the Husband has not provided any evidence to demonstrate that he is unable to afford to sustain himself until the trial of this action in January 2026 without the sale of the home, nor is there any evidence that he has had insufficient funds to sustain himself since the date of separation.
The Law
[24] Sections 2 and 3 of the Partition Act state that all joint tenant owners of a property may be compelled to sell the property, and that any person interested in the land may bring an action or make an application for the partition and sale of the land.
[25] A joint tenant has a prima facie right to partition and sale. There is a corresponding obligation on a joint tenant to permit partition and sale: Davis v. Davis, [1954] O.R. 23 (C.A.), at p. 29.
[26] Claims made under the Partition Act should not proceed where it can be shown that to do so would prejudice the rights of either spouse under the Family Law Act: Silva v. Silva (1990), 1 O.R. (3d) 436 (C.A.), at p.445. In Silva, the Court of Appeal for Ontario also found that a spouse's not yet adjudicated claim for division of net family property was not a sufficient reason to delay the sale of the home.
[27] The Court of Appeal for Ontario stated in Latcham v. Latcham (2002), 27 R.F.L. (5th) 358 (Ont. C.A.), at paras.1-3, that the discretion to refuse a joint owner's request for the sale of land under the Partition Act is narrow. It requires malicious, vexatious or oppressive conduct.
[28] Justice McGee summarized the test to be met by the resisting party to defeat a motion for partition and sale in a family law context in Goldman v. Kudeyla, 2011 ONSC 2718, 5 R.F.L. (7th) 149, at para. 18:
To make a pre-trial order for the sale of a matrimonial home the court must first determine whether the resisting party has established a prima facie case that he or she is entitled to a competing interest under the Family Law Act. If not, then the right to sale prevails. If so, then the motion for sale is denied unless the selling party can demonstrate that the sale would not prejudice the rights of the resisting party.
[29] The Court of Appeal for Ontario has defined a "prima facie" case as evidence made by a party which, if believed, establishes the claim being made: Peel Law Association v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 81, at para. 65.
[30] The court may transfer a party's interest in the matrimonial home in full or partial satisfaction of an equalization or spousal support payment under s.9(1)(d)(i) of the Family Law Act. If the party opposing the sale establishes a prima facie case for this type of claim, this circumstance may impact a substantial right sufficient to postpone the sale of jointly held property prior to trial: Chaudry v. Chaudry, 2012 ONSC 2149, 19 R.F.L. (7th) 478, at para. 25.
[31] 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, at para. 19.
[32] The Court of Appeal for Ontario has confirmed that prejudice to the parties must be considered before an order for partition and sale is made: Punit v. Punit, 2014 ONCA 252, 43 R.F.L. (7th) 84, at para. 21. In Punit, at paras. 22-23, the order of the motions judge for partition and sale of the matrimonial home was set aside because:
a) There was a trial date in the very near future;
b) There was no evidence that the moving party required funds from the house for living expenses; and
c) The expenses of maintaining the home were being met by the responding spouse.
Analysis
Has the Wife made out a prima facie case against the Husband for the transfer of the matrimonial home/vesting order in satisfaction of a spousal support and/or an equalization payment?
[33] As a joint owner of the matrimonial home, the Husband has a prima facie right under the Partition Act to compel its sale.
[34] Much of the Wife's motion materials opposing the sale of the home were dedicated to argument that the Husband has failed to make adequate financial disclosure. Justice Mandhane has already ordered that the Husband's financial disclosure was adequate. The issue before me is to determine if the Wife has established a prima facie case for a vesting order against the Husband based upon the financial disclosure already provided, and if she will suffer prejudice if a sale of the home is ordered.
[35] The bank statements and other financial documents provided by the Wife establish that the Husband has received over $2,000,000 since the date of separation, including large deposits into a bank account, and large credit card payments. The Wife therefore alleges that the Husband has undisclosed income, or undisclosed accounts that existed as of the date of separation.
[36] Regarding her claim for equalization, the Wife provided two Net Family Property Statements that calculate a payment owed to her by the Husband ranging between $596,087.06 and $1,612,851.56, depending upon whether the funds received by the Husband post separation are included in the calculation.
[37] The Husband objects to the inclusion of the $2,033,529 funds received by him post separation as property owned by him on the valuation date. He also objects to the inclusion of stocks of $94,460, as he claims it is double counting. As well, he argues that the Wife has provided no evidence to establish the date of separation values totaling $145,000 that she assigned, collectively, to his Camaro, Harley Davidson, and tools.
[38] Even if all these funds were removed as date of valuation assets owned by the Husband, the Wife has still established a prima facie case for the date of separation values of the assets owned by the Husband totaling $1,473,694.39, resulting in an equalization payment owed to the Wife of $476,357.05. This amount is significantly in excess of the value of the assets the Husband claims are presently owned by him, apart from his equity in the matrimonial home.
[39] Regarding her claim for spousal support, the Wife provided evidence that her income for 2024 was $70,545.74 (not including spousal support payments). The Wife listed the Husband's income as $335,721 in the DivorceMate calculation provided by her, which included a gross up for non-taxable income. I note that this total is very close to the Husband's 2023 reported income of $327,372.02.
[40] The Wife has therefore proven on a prima facie basis that the Husband is capable of earning income in excess of $300,000. Using the DivorceMate calculation provided by the Wife, she has established a prima facie case for a spousal support payment retroactive to September 2019, ranging from approximately $600,000 to $780,000.
[41] Although the Husband will be entitled to a credit for the $154,000 he has already paid in spousal support, and the $113,000 advance he paid to the Wife, the evidence provided by the Wife establishes on a prima facie basis that the Husband owes her a minimum of several hundred thousand dollars for retroactive spousal support. Again, based on the Husband's evidence, this amount is significantly in excess of the funds available to him to pay a spousal support award, apart from his equity in the matrimonial home.
[42] The Wife also argues that if the post separation payments received by the Husband exceeding $2,000,000 are deemed to be income, that an additional $338,921.50 per year will be added back to the Husband's past income earned. She stated in her affidavit that this situation will result in a monthly spousal support award of approximately $31,000 per month. The Wife did not provide a DivorceMate calculation to support this statement.
[43] Even if the $2,000,000 in payments received is not included in either the Husband's income or assets, the Wife has provided sufficient evidence to establish on a prima facie basis that she is entitled to an equalization payment that will at minimum total over $400,000, plus entitlement to a retroactive support payment that totals a minimum of several hundred thousand dollars. These amounts are in excess of the funds that the Husband says are available to him apart from his equity in the matrimonial home.
[44] It must be emphasized that these findings made by me with respect to the Wife's entitlement to payments by the Husband are made on a prima facie basis only. A determination of the Wife's entitlement to an equalization payment or spousal support payments will be dealt with further at trial, with the benefit of cross-examination.
[45] The fact that Justice Mandhane found that the Husband has produced adequate disclosure does not establish that the Wife's claims for support and equalization will fail at trial. I note that Justice Mandhane commented in her decision at para. 8 that the Husband's affidavit "raises many unanswered questions about the exact nature of his relationship and dealings with various third parties".
[46] Considering all the evidence above, I find that the Wife has established a prima facie case for a vesting order to satisfy her entitlement to additional spousal support, and/or an equalization payment from the Husband that is in excess of the amounts available to him apart from the sale of the matrimonial home.
[47] The Husband has provided an explanation as to why these sums should not be included in his income or in an equalization calculation. He has also provided evidence that his income is now greatly reduced as he no longer works a second job. The Wife bears the onus at trial of establishing entitlement to these benefits.
Has the Wife established that she will be prejudiced if the matrimonial home is sold before trial?
[48] The only valuation before me was provided by the Husband, which values the home between $1.23 million and $1.33 million. On the basis of the paper record produced for this motion, I accept that each party has equity in the range of $600,000 tied up in the matrimonial home.
[49] If the Wife is successful in establishing her claims for spousal support and/or equalization, she will be required to access a substantial portion, or all, of the Husband's $600,000 equity in the matrimonial home to receive the amounts owed to her. According to the Husband's evidence, his only other assets are his RRSPs with Great West Life, worth approximately $182,000 net. If this evidence is correct, the Husband will likely have insufficient assets to satisfy the judgment should the Wife be successful at trial. Selling the home in advance of the trial therefore prejudices the Wife's ability to collect on a judgment rendered in her favour.
[50] I also note that the Wife's claims for exclusive possession and a vesting order for the matrimonial home would be defeated should the order for sale be granted. This factor also raises a reasonable prospect of prejudice for the Wife should the home be sold in advance of the trial.
[51] I do not find that the Husband's desire to use his equity in the matrimonial home to fund his legal retainer for the trial is a sufficient reason to order the sale of the home, in light of the reasonable prospect of prejudice the sale will cause to the Wife. In making this finding, I have also considered the following factors:
a) The Husband did not put forward any evidence that he requires the equity in the matrimonial home to sustain himself until the trial occurs;
b) The ongoing maintenance and carrying costs of the home are being funded by the Wife;
c) It is not inevitable that the matrimonial home will be sold at the conclusion of this litigation as the Wife is seeking a vesting order;
d) The Husband's own evidence regarding his assets establishes that he has insufficient assets to satisfy the Wife's prima facie case for spousal support and/or an equalization payment apart from his equity in the matrimonial home;
e) The trial in this matter is less than three months away, and the house may not be sold within that period of time in any event; and
f) Given the close proximity of the trial, the inability of the parties to agree upon a value for the matrimonial home is not a sufficient reason to force its sale at this time.
Does the Wife's inclusion of a claim for partition and sale of the matrimonial home in her application preclude her from resisting that same relief on this motion?
[52] The Wife included the following in her prayer for relief in the application:
Disposition of Joint Property
An Order that the Applicant shall have exclusive possession of matrimonial home and its contents pending its disposition.
Contingent first upon the Respondent's production of financial disclosure, and provided the parties are unable to negotiate a transfer of the property, an order for partition and sale of the jointly owned matrimonial home and such terms and conditions to be advised upon relating to facilitating that sale.
If the Respondent fails to make financial disclosure or pay support, an order that title to the jointly owned matrimonial home shall be vested in the sole legal name of the Applicant as partial satisfaction of claims to equalize net family properties and spousal support.
[53] The Husband argues that because he has made full financial disclosure as determined by Justice Mandhane, and is up to date on his spousal support payments, that the Wife will suffer no prejudice if the matrimonial home is sold.
[54] The fact that the Husband has been found to have made adequate financial disclosure does not remove the Wife's request for a vesting order from her pleading. The Wife is maintaining her claim that the Husband has not paid her adequate support, and that he owes her a substantial equalization payment. In addition, the Husband has not provided evidence of any prejudice that he has suffered resulting from the Wife now abandoning her request for partition and sale.
[55] Accordingly, the Wife's decision to request in her prayer for relief both a vesting order, and an order for partition and sale in the alternative, does not preclude her from arguing against partition and sale on this motion.
Costs
[56] The parties reached a procedural agreement that the successful party will pay the other party costs of $10,000 all inclusive for this motion. The Husband's motion for partition and sale of the matrimonial home is dismissed. Accordingly, the Husband shall pay the Wife costs of $10,000 for this motion.
Wilkinson J.
Released: November 10, 2025