Court File and Parties
Court File No.: FS-25-00050577-0000 Date: 2026-02-18 Superior Court of Justice - Ontario
Re: Lyn Futerman, Applicant And: Steve Furman, Respondent
Before: C. Leach, J.
Counsel: Samantha Eisen and Dominique Pangilinan, for the Applicant Ilana Arje-Goldenthal, for the Respondent
Heard: November 20, 2026
Endorsement
[1] This motion is brought by the Respondent husband who is seeking an order that the jointly held matrimonial home be listed for sale, various orders to facilitate the listing and sale of the property, and an order directing the disbursement of the proceeds for sale.
Background
[2] The parties were married on March 25, 2007. They have three children: K. (age 16, grade 11), R. (age 13, grade 7) and E. (age 8, grade 3).
[3] The parties separated on August 19, 2024, when the Applicant wife obtained a temporary retraining order and a temporary order for exclusive possession of the matrimonial home following an ex parte motion. The wife alleges that the husband was violent towards her during the marriage and has advanced a tort claim as part of her application. She also seeks spousal support and an equalization payment.
[4] Since separation, the children have lived primarily with the Applicant wife in the matrimonial home. The husband has parenting time at his nearby rental home. During week 1, he has the children from Wednesday after school to Sunday at 7pm. During week 2, he has the children from Wednesday after school to Thursday before school. The parties agreed to these arrangements on a temporary basis.
[5] The matrimonial home is the parties' primary asset. The husband and wife jointly purchased the home on July 5, 2012, for $734,990. The husband believes that it is now worth between $1.7 million and $2.1 million. The wife obtained a letter of opinion from a realtor in July 2025, which estimated the value to be $1,706,000. However, the wife believes that the value has since declined in light of current market conditions. There is debt registered against the property in the amount of about $630,000, comprised of two mortgage segments and a line of credit.
[6] The husband wishes to sell the home to access the equity and obtain credit so that he can purchase a home. The wife wishes to purchase the husband's interest in the home, but the parties have not been able to reach an agreement on terms.
The law
[7] As set out by Pazaratz, J. in para. 16 of Dhaliwal v. Dhaliwal, 2020 ONSC 3971, the legal principles governing the sale of a jointly owned matrimonial home can be summarized as follows:
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.
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; Marchese v. Marchese, 2017 ONSC 6815; Jama v. Basdeo, 2020 ONSC 2922; Davis v. Davis, [1954] O.R. 23 (C.A.); and Brienza v. Brienza, 2014 ONSC 6942.
c. The court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made: Jama; Steele v. Doucett, 2020 ONSC 3386.
d. The other joint tenant has a corresponding obligation to permit the sale. These are fundamental rights flowing from joint tenancy: Steele.
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.
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 (C.A.); Jama; Steele.
g. Each case must be considered on its own facts; the court must consider all relevant factors in exercising its discretion: Davis; Steele.
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.
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; Parent v. Laroche, 2020 ONSC 703; Latcham v. Latcham; and Dulku v. Dulku, 2016 ONSC 6409.
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; Giglio v. Giglio, 2015 ONSC 8039; and Keyes v. Keyes, 2015 ONSC 1660.
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; Kaing v. Shaw, 2017 ONSC 3050. 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. 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.
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.
o. On the other hand, a request for sale during summer months may entail some timeliness if seasonal market opportunities are favourable; or to reduce the likelihood of a child having to change residence (and possibly catchment area) while a school year is in session.
p. The stage of a child's academic progress might also be relevant. Sale might be delayed if it would allow a child to complete a certain grade level before an inevitable switch to another school. On the other hand, immediate sale might be more appropriate if the child happens to be transitioning to a new school in any event.
Analysis
[8] Applying these legal principles to the case before me, I make the following findings.
[9] As a joint tenant, the husband has a prima facie right to an order for partition and sale of the property. However, because the property in question is a matrimonial home, this prima facie right is subject to any competing interests under the Family Law Act, R.S.O. 1990, c. F.3, that would otherwise be defeated. The onus is on the wife to establish that she has a legitimate family law claim that would be unfairly prejudiced if the sale is permitted.
[10] The sale of the matrimonial home is often the most important catalyst to effect the equal division of family assets and establish post-separation parenting plans: Goldman, at para. 20. This appears to be the crux of the husband's argument. He is concerned about both parties' precarious financial position, including their mounting debt. Moreover, he wishes to purchase his own home, using his share of the equity in the matrimonial home. His view is that accelerating the determination of each parent's eventual residence and budget will help the parties to determine the remaining issues, including parenting and support.
[11] I agree that the court has a duty to promote early settlement of cases and consider whether its orders will encourage or reward complacency and delay tactics. I have also considered the husband's argument that this matter is complex and that a trial will not take place for many months. These factors would favour an early sale of the home. However, in this case, I am of the view that other considerations must take priority.
[12] First, I am satisfied that the wife has legitimate family law claims that will be prejudiced if the home is sold and the proceeds distributed. The wife has brought claims for spousal support, equalization of property and tort damages, none of which have been resolved.
[13] Based on the realtor's letter of opinion estimating the value of the home to be $1,706,000 and the parties' agreement that the charges against the home amount to about $630,000, and accounting for real estate commission of 5% and legal fees, I accept the wife's estimate that the equity in the matrimonial home is about $985,000. Therefore, the husband's 50% share of the equity would be about $492,500.
[14] The husband argues that there is more than sufficient equity in the matrimonial home to secure both of their claims for the equalization of net family property. This is true. The husband claims that the wife owes him an equalization payment of $52,662. The wife claims that the husband owes her an equalization payment of $198,965.78.
[15] However, the wife also has an unresolved claim for spousal support on both compensatory and needs based grounds. Although both parties are professionals working full-time, the wife asserts that her potential to earn income has been diminished as a result of taking on the childcare and housekeeping responsibilities during the marriage and the history of family violence. She points to a disparity in income between the two spouses, with her earning $154,117 and the husband earning $208,674 in 2024. The wife has acknowledged that the husband is currently unable to pay spousal support under the Spousal Support Advisory Guidelines "with child support formula", due to his ongoing obligations to pay child support and section 7 expenses. However, this does not mean that she does not have a potential entitlement to a lump sum award.
[16] Further, the wife has brought tort claims for damages she allegedly suffered as a result of family violence, including $500,000 in compensatory and aggravated damages, $100,000 in punitive damages, and $500,000 for loss of past and future income. The husband vigorously disputes the allegations of family violence, and I am unable to make any findings on this issue based on affidavit evidence that has not been tested through cross examination. However, the wife's claims do not rest merely on merely bald or assertions. Her materials include confirmation that a Children's Aid Society worker was involved at the time of the parties' separation, and that the worker verified that the children were exposed to conflict in the home, including incidents of verbal and physical aggression. The wife's materials also include an expert psychological report detailing her current mental health status and psychological distress, which the expert opines are consistent and supportive of a psychological profile of someone who is the victim of intimate partner violence.
[17] Again, none of these findings have been tested through cross-examination and I draw no conclusion as to whether the husband was in fact abusive. However, I am satisfied that the wife has legitimate family law claims for spousal support and damages in tort that will be prejudiced if the matrimonial home is sold, and the proceeds of sale are disbursed to the parties.
[18] Accordingly, there is no practical advantage to forcing the sale of the home as the sale proceeds would need to remain in trust until the parties have resolved their financial issues.
[19] I am also concerned about the potential impact of the sale of the home on the children and on the wife.
[20] The parties provide divergent accounts of the children's adjustment to their separation. The husband's perspective is that the children are thriving academically, socially and emotionally. He points to their excellent report cards from June 2025 and describes them as each having a close network of friends and busy extracurricular schedule. He has not observed any issues of concern. The mother, on the other hand, states that the children are each displaying emotional and behavioural issues. She experiences K. to be non-communicative, withdrawn and sullen; R. to be stressed, guilty, conflicted and anxious to the point that he has trouble sleeping; and E. to be so emotionally dysregulated that she is prone to violent and intense emotional meltdowns.
[21] The husband relies on a Voice of the Children Report prepared by Allyson Gardner in September 2025 to support his position that the children are adjusting well to the separation. I take a somewhat different view of the report, particularly in respect of R., who was described as very distressed and emotional during parts of the process and who reported feeling pressured and caught in the middle. I also note R. expressed worries to Ms. Gardner about leaving behind his room and his memories, which are important to him, and his confirmation about some of his sister's behaviours.
[22] Additionally, the wife has provided several examples of the husband sharing inappropriate information with the children. I find that Ms. Gardner's report substantiates the wife's concern that the husband is freely sharing his views on the parenting schedule and financial issues with the children. I am struck by the fact that none of the children were very clear on the outcome that their mother hoped for but were very much aware that their father wanted a 50/50 parenting time arrangement.
[23] The children have resided in the matrimonial home since birth and at least R. and E. have struggled with the aftermath of their parents' separation. I am satisfied that these children will experience a negative impact from the sale of the home that is more serious than "the inevitable adjustments and disruptions which all families face when parents decide to separate": Dhaliwal, at para. 16 (q). On its own, this factor would not be sufficient for the wife to successfully resist the sale of the matrimonial home. However, given that there is no practical or immediate benefit to selling the property (as the husband will be unable to access the equity), this factor assumes more prominence. There is simply no good reason to displace the children at this point.
[24] I must also consider the impact of the sale on the wife, as I find that she is a "vulnerable spouse". While the husband attributes her mental health issues to her difficult childhood rather than to any abusive conduct on his part, the fact remains that she has been professionally assessed to have severe psychological distress and impairment, with symptoms consistent with a diagnosis of post traumatic stress disorder. I accept that, given these symptoms, it will be difficult for her to pack up a household, ready the house for sale and search for new accommodation while also working full-time and parenting the children.
[25] I appreciate that if the financial circumstances of the parties are such that a sale would be the inevitable result at trial, notwithstanding the above, there would be little justification for delaying the sale. The husband's position is that the carrying costs for the house are currently unsustainable and that it is inappropriate to indefinitely perpetuate financial hardship for the entire family.
[26] There is no question that the parties are struggling to cover their expenses now that their incomes must fund two separate households. The situation is exacerbated by the very high cost of servicing their debt. However, there is no evidence that power of sale proceedings or bankruptcy are imminent. This is also not a situation where the husband is prevented from securing reasonable accommodation because of his ongoing obligations to cover the carrying costs of the home. The wife has been paying for all of the house expenses (mortgage, insurance, interest on the line of credit, repairs) since June 2025, without contribution from the husband. She has undertaken to continue to pay the monthly carrying costs (on a without prejudice basis) while she resides there. She acknowledges that her family has been assisting her with ongoing expenses so that she can remain in the matrimonial home with the children and that if this assistance ceases to be available, they will have to sell the home. However, she disagrees that the home needs to be sold now.
[27] The husband has been able to secure rental accommodation nearby. I accept that he is struggling to cover his monthly expenses and hopes to access the equity in the matrimonial home to bridge the gap. But, for the reasons outlined above, the sale of the home will not provide him with the equity he seeks. Further, the wife's unchallenged evidence is that, in addition to refusing to contribute to the parties' joint debts, the husband has unnecessarily increased the carrying costs by refusing to consent to a lower-rate variable mortgage, thereby requiring the wife to incur more interest.
[28] Finally, this does not appear to be a situation where the wife is advancing the litigation at a glacial pace with the hope that she can remain in the home for as long as possible, as was the case in Sokoloski v. Sokoloski, 2022 ONSC 4590. The wife has taken steps to obtain an appraisal of the home and has made a proposal to purchase the husband's interest in the home.
Costs
[29] As the Applicant wife has been successful in resisting the husband's motion seeking an order for the sale of the matrimonial home, she is presumptively entitled to her costs. The parties are encouraged to reach an agreement on costs. If they are unable to do so, the Applicant shall serve and file written submissions on or before March 3, 2026. The Respondent shall serve and file responding submissions on or before March 17, 2026. Written submissions shall comply with the requirements set out in r. 24(19) of the Family Law Rules, O. Reg. 114/99.
Justice Carolyn Leach
Date: February 17. 2026