Gayle v. Neil, 2026 ONSC 1540

CITATION: Gayle v. Neil, 2026 ONSC 1540

COURT FILE NO.: FS-23-000039728-0000

DATE: 20260313

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Royan Gayle, Applicant

AND:

Anetta Neil, Respondent

BEFORE: M. Kraft, J.

COUNSEL: Rachel Zweig, Agent for the Applicant

Anetta Neil, self-represented

HEARD: March 12, 2026

ENDORSEMENT

Nature of the Motion

1This is the applicant’s motion to list the parties’ jointly owned matrimonial home and investment property for sale. With respect to the terms of sale, the applicant seeks to have each party hold back $70,000 from the net proceeds of sale from the matrimonial home as security for the remaining family law claims with the balance to be released to each of them, less the costs the respondent owes him in these proceedings of $11,000. He also seeks that the parties equally divide the net proceeds of sale from the investment property.

2The respondent objects to the sale of both the matrimonial home and investment property. She claims that the applicant’s motion is malicious and vexatious, intending to cause harm to her and the parties’ child. She argues that it would be prejudicial to her if either property were sold right now and that it is against the child’s best interests to make the orders sought by the applicant.

Issues to be determined

3The issues to be determined on this motion are as follows:

a. Should the matrimonial home be partitioned and listed for sale? If the answer is yes, should $70,000 be held back as proceeds in trust pending further court order or agreement of the parties?

b. Should the investment property be partitioned and listed for sale?

Brief Background

4The parties met in 2022. They were married on October 23, 2010. They separated on August 4, 2022.

5They have one child, H., 6 years old.

6The parties jointly own their matrimonial home located at 12 Petiole Road, North York, ON.

7They also jointly own an investment property located at 177 Woodside Avenue which is tenanted.

8The respondent mother and child have resided in the matrimonial home since separation, almost 4 years ago.

9The applicant father was criminally charged on April 1, 2023, leading to a restraining and no contact order. The charges were eventually withdrawn or resolved in October 2024.

10The father has not resided in the matrimonial home since August 4, 2022. He lives in rental accommodation.

11According to the father, he has assumed responsibility for the costs of the investment property and solely collected rent for that property. He has also paid for property insurance on the matrimonial home.

12The mother has assumed responsibility for the costs associated with the matrimonial home, including mortgage, property taxes, utilities, maintenance and repairs and collected rent from the basement unit, although that unit is not currently rented.

13The father acknowledges that the mother has expressed an interest from time to time since separation in purchasing his half-interest in the matrimonial home. However, despite knowing that an appraisal would be needed and she would have to make an offer to buy him out, the mother has taken no steps to do so.

14On February 17, 2026, the parties were directed to TBST Court before Nakonechny, J. because the father brought an urgent motion for the sale of the matrimonial home and investment property. The mother argued that there was no urgency because she pays the carrying costs of the matrimonial home and the rental income from the investment property carries the costs of that property. The parties have a TMC scheduled for June 15, 2026.

15Nakonechny, J. states in her Endorsement that the parties should be able to seek access to their equity in these properties prior to a trial date which is likely to be in mid-2017. As a result, the father’s motion for the sale of both properties was scheduled to be returnable today.

16The father argues that he told the mother at the TBST attendance that he was willing to have his half interest in the matrimonial home to be purchased by her. Toward that end, he sent the mother an email on February 17, 2026, asking if she would be willing to jointly retain an appraiser to appraise both properties that week. He asked her to respond by the following morning at 10:00 a.m. or he would proceed with his own appraisal. The mother’s email response was to accuse the father and his counsel of bullying and intimidating her and engaging in coercive control against her. I have reviewed the two emails referred to and I do not find that the father’s email was threatening or intimidating.

17To date, the father has had to bring several urgent motions in this proceeding to obtain parenting time and to address the mother’s unilateral enrollment of the parties’ daughter in private school. The father has been successful on the motions and the mother has been ordered to pay his costs totalling $11,000, all of which are outstanding.

Issue One: Should the matrimonial home be partitioned and listed for sale? If the answer is yes, should $70,000 be held back as proceeds in trust pending further court order or agreement of the parties?

18The appraisal report obtained by the father after the TBST attendance lists the fair market value (“FMV”) of the matrimonial home at $920,000. The mortgage and line of credit registered on title totals $611,256.73, leaving about $390,000 of equity. After commission, property tax arrears and legal fees are paid, the net sale proceeds will be approximately $260,000 or $130,000 each.

19When the father left the matrimonial home, the basement unit of the home was tenanted at the rate of $2,200 a month. The mother advised during the motion that the last tenant caused damage to the unit and, as a result, it is not currently being tenanted.

20The father seeks an order that $70,000 from each party’s share be held back from the net sale proceeds from the matrimonial home. He believes this is more than sufficient to secure his claims for occupation rent, post-separation adjustments and costs.

21The father seeks his equity from the matrimonial home to enable him to pay his debts, retain counsel, to service his maxed-out credit facilities and for his basic living expenses. He can no longer afford to pay the carrying costs of the investment property. He has exhausted all available credit and borrowed funds from family and friends and needs to repay everyone.

The law on sale of jointly owned home

22Section 2 of the Partition Act, empowers the Court to compel the sale of jointly held property, including a matrimonial home. As per the Partition Act, the Court has the right to order the partition and sale of property, and a co-owner has a prima facie right to partition and sale. Specifically, Sections 2 and 3(1) [am. 1984, c. 11, s. 200(1)] of the Partition Act, R.S.O. 1980, c. 369, provide as follows:

(2) All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.

3(1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the Court if such sale is considered by the Court to be more advantageous to the parties interested.

23In Dhaliwal v Dhaliwal, 2020 ONSC 3971, the Court summarized the applicable legal principles outlined in previous cases to be considered at a motion for an Order listing a home for sale in family law matters. These cases stated that the 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. Each case must be considered on its own facts, and the Court must consider all relevant factors in exercising its discretion.

24The case Dhaliwal v Dhaliwal summarized further applicable legal principles to Orders for Partition and Sale 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 (Ont. S.C.J.).

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 (Ont. Div. Ct.); Marchese v. Marchese, 2017 ONSC 6815 (Ont. S.C.J.); Jama v. Basdeo, 2020 ONSC 2922 (Ont. S.C.J.); Davis v. Davis, 1953 148; Brienza v. Brienza, 2014 ONSC 6942 (Ont. S.C.J.). c.

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. Doucet, 2020 ONSC 3386 (Ont. S.C.J.).

d. The other joint tenant has a corresponding obligation to permit the sale. These are fundamental rights flowing from joint tenancy. Steele v. Doucet.

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 (Ont. S.C.J.).

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 (1990), 1990 6718 (ON CA), 1 O.R. (3d) 436 (Ont. C.A.); Jama v. Basdeo; Steele v. Doucet.

g. Each case must be considered on its own facts. The court must consider all relevant factors in exercising its discretion. Davis v. Davis (1953), 1953 148 (ON CA), [1954] O.R. 23 (Ont. C.A.); Steele v. Doucet.

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 (1973), 1973 603 (ON CA), 2 O.R. (2d) 713 (Ont. C.A.).

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 (Ont. S.C.J.); Latcham v. Latcham (2002), 2002 44960 (ON CA), 27 R.F.L. (5th) 358 (Ont. C.A.); Dulku v. Dulku, 2016 CarswellOnt 16066 (Ont. S.C.J.).

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 (Ont. S.C.J.); Giglio v. Giglio, 2015 ONSC 8039 (Ont. S.C.J.); Keyes v. Keyes, 2015 ONSC 1660 (Ont. S.C.J.).

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 (Ont. S.C.J.); Kaing v. Shaw, 2017 ONSC 3050 (Ont. S.C.J.). 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 (Ont. Div. Ct.). 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 2004 34595 (ON SC), [2004 CarswellOnt 4332 (Ont. S.C.J.)].

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 (Ont. S.C.J.).

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.

q. But the mere existence of children in a household is not in itself a sufficient basis to oppose a sale. A generic statement that children enjoy living in their current house or that they will be unhappy if they have to move, is not sufficient. The party opposing a sale must establish a likely negative impact more serious than the inevitable adjustments and disruptions which all families face when parents decide to separate.

r. A pending equalization claim may also be relevant. The court cannot compel one joint tenant to sell to the other. Martin v. Martin 1992 7402 (ON CA), [1992 CarswellOnt 226 (Ont. C.A.)]. Nor can it give either joint tenant a right of first refusal. Dibattista v. Menecola [1990 CarswellOnt 574 (Ont. C.A.)], 1990 6888. But a recipient of an equalization payment may propose to set that entitlement off against their former spouse's share of the equity in the home. If a sufficiently particularized proposal seems viable -- and especially if it would benefit a child -- sale should be delayed to allow proper consideration of that option. Chaudry v. Chaudry, 2012 ONSC 2149 (Ont. S.C.J.).

s. The court must consider and attempt to guard against potential prejudice. Are there realistic issues or claims yet to be determined on a final basis, which would be prejudiced or precluded if a property is ordered to be sold at the temporary stage?

The father’s position

25To minimize the impact of the sale on the child, the father is agreeable to any closing of the matrimonial home not happening until the end of the school year. He has had to pay significant rent over the past 4 years, while paying the carrying costs of the investment property and the property insurance for the matrimonial home. To do so, the father has borrowed money from family and friends, and he earns almost half of what the mother earns. He has maxed out his credit facilities and he needs his equity to reduce his debt and to pay his living expenses.

26Further, Nakonechny, J. told the parties that the trial of this matter will not likely proceed before mid-2027. The father cannot wait until then to obtain his share of the equity from both jointly owned properties. The mother’s claims will not be prejudiced. It is the father who has a spousal support claim, a claim for the equal division of the parties’ net family properties, claim for occupation rent, claims for post-separation adjustments and for unpaid costs. The mother’s claims are limited to post-separation adjustments. Finally, the father claims it is inevitable that the properties will need to be sold.

The mother’s position

27The mother argues that the sale of the matrimonial home will cause her further hardship because the father has been physically, emotionally and financially abusive toward her. She submits that requiring a sale of the matrimonial home and investment property increases her anxiety. In particular, she asserts that the sale of the matrimonial home is not in the child’s best interests because a) the child has multiple medical conditions and concerns, including teeth grinding, obstructive sleep apnea, a lazy right eye and intermittent heart rate increase; b) although the child had surgery to address her obstructive sleep apnea, she will need to undergo a further sleep study in June of 2026 and if she is required to move, this could disrupt her sleep pattern; c) the move could result in further anxiety for the child and she is well settled in the community and in the house.

28Finally, the mother argues that this motion is unfair and prejudicial to her claim for an unequal share of the parties’ net family properties since she is the person who has paid the mortgage and all expenses of the matrimonial home before the separation and after separation. She submits that her claim for an unequal division of net family property is made under s.5(6)(f) of the Family Law Act because she has paid all expenses associated with the matrimonial home since separation. She referred to the father’s refusal to contribute to the matrimonial home expenses as “financial abuse”. Finally, she argues that the father has not demonstrated urgency or hardship and that to sell the matrimonial home in a down market will be of no benefit to either party.

Application to the facts

29I find that the mother has conflated her claim for post-separation adjustments with a claim for unequal division of net family property. The mother argues that she is entitled to more than one-half the difference in the parties’ net family properties because of family violence she experienced and because she has paid for the mortgage and maintenance expenses of the matrimonial home post-separation.

30When directed that her claim for an unequal division of net family properties has to come within s.5(6) of the Family Law Act, the mother argued that her unequal division claim falls under s.5(6)(f), namely, that she has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family. However, the mother put forward no evidence on the record regarding this claim. Further, as pointed out by counsel for the father, the mother has not pled an unequal division of net family property in her Answer/Claim.

31The mother does, however, argue that she is entitled to be reimbursed for 50% of the matrimonial home expenses paid for entirely by her since the separation 4 year ago. I agree that she is entitled to reimbursement for many of these expenses. That claim is for post-separation adjustments, which can be addressed by the holdback of funds from the net proceeds of sale from the matrimonial home as proposed by the father. In this way, there is no prejudice to the mother’s claim for post-separation adjustments.

32I am not persuaded that the mother has met her onus to demonstrate that the father’s motion is malicious, vexatious or oppressive. The mother and child have had exclusive use of the matrimonial home for almost 4 years since the separation. The father has communicated his willingness to consider a buy out proposal from the mother. He proposed a joint appraisal for this purpose, but the mother has taken no steps to propose a buy-out, nonetheless. There is no right in law entitling the mother, as a joint tenant, to purchase the father’s half interest in the matrimonial home. Notwithstanding this, the father has remained open to considering such a proposal which she never made.

33While moving will be disruptive, that in and of itself cannot be a reason to deprive a joint tenant of his prima facie right to a sale of a jointly owned property. As the case law demonstrates the opposing party to a sale must demonstrate more than the fact that H. enjoys living in their current house and neighbourhood or that she will be unhappy if she has to move. There has been no negative impact that the motion can point to if the matrimonial home is sold, other than it may disrupt her sleep patterns and/or it may cause H. anxiety.

34The mother’s evidence is replete with references to items she paid in connection with the matrimonial home and/or investment property during the marriage. The Family Law Act does not apportion or call for reimbursement between spouses to make them whole for things that occurred during the marriage. Rather, a snapshot is taken of each spouse’s assets and debts as at the date of marriage and date of separation. Expenses paid for by one or both spouses after the date of separation for jointly owned property are accounted for in a claim for post-separation adjustments which do not impact the calculation of each spouse’s net family property. Therefore, the mother’s repeated references to solely contributing to the down payment from her sole resources to purchase the investment property or to funding a renovation to the matrimonial home which occurred prior to separation is irrelevant to the determination of whether these properties should be sold. Furthermore, this evidence does not impact the calculation of either party’s net family property or equalization payments. Further, the mother’s claims for an unequal division of net family property under s.5(6) of the Family Law Act is not impacted by any “family violence” or “abuse” she suffered or his “non-contribution” toward expenses post-separation.

Mother’s claim for post-separation adjustments

35Given that I agree with the mother that she has a legitimate claim for post-separation adjustments, as does the father, I have considered the evidence she has put forward regarding this claim. In her affidavit, the mother has calculated the mortgage payments she has made to TD since 2018 when the home was purchased. Again, the only relevant time period is from the date of separation onward which is August 4, 2022.

36The annual mortgage statements attached to the mother’s affidavit ad Exhibit “C” show the following paid by her toward the principal and interest on the mortgage and property taxes for 2022 to 2025:

a. $33,396 for 2022. Since the parties’ separated on August 4, 2022, only 4 months of payments, totaling $11,132 is after the date of separation;

b. $33,184 for 2023;

c. $33,145.82 for 2024; and

d. $30,079.66 for 2025.

37From August 4, 2022, to December 31, 2025, the mother solely paid $97,521.48 toward the mortgage and property taxes. The father must reimburse 50% of this amount, totalling $48,760.74. This adjustment excludes 2026; however, if the mother continues these payments, the father’s total liability could increase by $15,000 to approximately $65,000. This claim is fully secured by the $70,000 holdback from the father’s share of the sale proceeds.

38The mother also claims reimbursement for utilities, maintenance, and repairs. As a joint owner, the father is not responsible for utilities during the mother’s exclusive occupation of the home. Regarding maintenance and repairs, the mother bears the onus of proving that her sole payments were for capital, rather than routine expenses before the father is obliged to reimburse her. As the mother has not yet provided evidence of capital expenditures since August 4, 2022, she retains the right to claim 50% of these expenses as a post-separation adjustment once documented. She will, however, have the right to claim reimbursement for 50% of these expenses as a post-separation adjustment.

Issue Two: Should the jointly owned investment property be partitioned and listed for sale?

39The same law applies to the sale of the investment property as listed for the matrimonial home as the law relates to jointly owned real property. However, since neither party nor child lives in the investment property, there can be no claim for prejudice or harm relating to the impact of its sale.

40The mother claims that she arranged for and funded the down payment and closing costs of the investment property on May 13, 2022, and on June 27, 2022. Again, the source of funds used to purchase the investment property prior to separation, does not come into the determination of whether this jointly owned property ought to be sold.

41According to the mother, she continued for a period of time to make the mortgage and line of credit payments connected to the investment property. She did not provide an accounting of these payments.

42The parties agree that the father has collected the rental income from the investment property for a period of time after separation. They do not agree on the amount of rental income he collects. The father’s reply affidavit suggests that he has not been collecting rent because the tenant stopped paying and he is in a legal dispute over this rent currently.

43The mother failed to prove the father’s desire to sell the investment property is malicious or vexatious. Instead, the evidence suggests that the father has a superior claim for post-separation adjustments connected with the investment property as he carried the property’s expenses. According to his affidavit, he paid $84,676.36 in costs exceeding rental income, entitling him to a $42,338.18 reimbursement from the mother

44Any post-separation adjustments the mother owes the father for the investment property will be offset against his obligations for the matrimonial home.

45The evidence on record suggests the father will owe the mother approximately $20,000 in total adjustments. Accordingly, his proposal to hold $70,000 in trust from each party’s share of the matrimonial home sale proceeds is sufficient to cover these claims pending a further order or agreement.

Equalization Payment Claim

46Exhibit “H” to the father’s affidavit sworn February 27, 2026, includes an NFP statement showing the mother owes him an equalization payment (EP) of $46,020.89. The mother’s responding affidavit asserts that the father undervalued her pension; if correct, her EP debt would increase beyond $46,020.89. This claim is secured by the $70,000 holdback from the mother’s share of the matrimonial home sale proceeds. There is no claim by the mother, therefore, in respect to property division that is prejudiced by the sale of either the matrimonial home or investment property.

Occupation Rent Claim

47The mother conflates the father’s occupation rent claim with his lack of contribution toward the matrimonial home expenses. The father’s occupation rent claim arises from the mother’s refusal to sell the home, which he argues deprived him of the opportunity to earn rental income. He contends that she should pay half the potential rent (Khan v. Kahn, 2015 ONSC 6780, at para. 11; Doyle v. De Sousa, 2023 ONSC 3163, at para. 40).

48Occupation rent is a discretionary claim. The relevant factors to be considered when occupation rent is at issue in a family law context are (Non Chhom v. Green, 2023 ONCA 692, at para 9):

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 their equity in the property;

d. any reasonable credits to be set off against occupation rent; and

e. any other competing claims in the litigation.

49In several recent decisions, the Ontario Superior Court of Justice has additionally considered the following factors:

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 charges 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.

See, e.g., Ginese v. Fadel, 2024 ONSC 3011, at para 26 & Delongte v. Delongte, 2024 ONSC 3454, at para 244, both citing Higgins v. Higgins, 2001 28223 (ON SC), at para 53.

50While the current record is insufficient to assess the likelihood of the father’s occupation rent claim, his proposal to hold back $70,000 from the mother’s equity share adequately protects his position. Again, this is not the mother’s claim and therefore there is no prejudice if the two jointly owned properties are sold.

ORDER

51This court makes the following order:

1. Matrimonial Home Sale

a. An Order that the matrimonial home shall be listed for sale immediately.

b. An Order that the parties shall cooperate to jointly retain an agent. If the parties cannot agree on an agent, the Applicant shall provide the names of three agents to the Respondent within 5 days.

c. The Respondent shall select one from the list within 48 hours. If the Respondent does not choose an agent within 48 hours, the Applicant shall be permitted to select the agent. The parties shall cooperate to execute a listing agreement forthwith.

d. An Order that the property shall be listed for sale as is. There shall be no staging, home improvements, or repairs made to the property, unless agreed upon by the parties in advance and in writing.

e. An Order that if the parties cannot agree on a listing price, they shall take the recommendation of their agent. They shall adhere to their agent’s recommendations with respect to the any reductions or increases in sale price.

f. An Order that the parties shall adhere to the recommendations of their agent with respect to other listing dates and the strategy for sale (i.e. Offer Day or Offers on a rolling basis).

g. An Order that the closing date shall be no sooner than June 30, 2026, unless agreed upon in advance and in writing between the parties.

h. An Order that the parties shall accept the first reasonable offer to purchase the home.

i. An Order that the Respondent shall cooperate with all showings which includes vacating the property during the shows and maintaining the home in a presentable condition.

j. An Order that the parties shall direct the real estate lawyer acting on the sale of the properties to pay the following expenses from proceeds of sale:

i. Amounts required to discharge any registered encumbrances, plus any applicable interest;

ii. Real estate commission;

iii. Legal fees and disbursements relating to the sale;

iv. Adjustments for taxes, utilities, municipal fees or levies;

v. Charges, encumbrances and liens that may be registered against the title of the property including outstanding property tax, outstanding utility bills and any other levies or penalties; and

vi. Any other sale adjustments;

vii. $70,000 shall be held back from each party’s share of the proceeds of sale for a total of $140,000; and

viii. The remaining shall be dispersed to the parties as follows:

1. 50% of the remaining to the applicant PLUS $11,000 from the respondent’s share in full satisfaction of the outstanding costs owing to him; and

2. 50% of the remaining to Annetta MINUS $11,000.

3. Investment Property Sale

k. An Order that the investment property shall be listed for sale immediately.

l. An Order that the parties shall cooperate to jointly retain an agent. If the parties cannot agree on an agent, the Applicant shall provide the names of three agents to the Respondent within 5 days. The Respondent shall select one from the list within 48 hours. If the Respondent does not choose an agent within 48 hours, the Applicant shall be permitted to select the agent. The parties shall cooperate to execute a listing agreement forthwith.

m. An Order that the investment property shall be listed for sale as is. There shall be no staging, home improvements, or repairs made to the property, unless agreed upon by the parties in advance and in writing.

n. An Order that if the parties cannot agree on a listing price, they shall take the recommendation of their agent. They shall adhere to their agent’s recommendations with respect to the any reductions or increases in sale price.

o. An Order that the parties shall adhere to the recommendations of their agent with respect to other listing dates and the strategy for sale (i.e. Offer Day or Offers on a rolling basis). There shall be no restrictions with respect to the closing date.

p. An Order that the parties shall accept the first reasonable offer to purchase the investment property.

q. An Order that the parties shall direct the real estate lawyer acting on the sale of the investment property to pay the following expenses from proceeds of sale:

i. Amounts required to discharge any registered encumbrances, plus any applicable interest;

ii. Real estate commission;

iii. Legal fees and disbursements relating to the sale;

iv. Adjustments for taxes, utilities, municipal fees or levies;

v. Charges, encumbrances and liens that may be registered against the title of the property including outstanding property tax, outstanding utility bills and any other levies or penalties; and

vi. Any other sale adjustments.

vii. Remaining proceeds:

1. 50% to the Applicant; and

2. 50% to the Respondent.

r. If the investment property is anticipated to close in a deficit and the matrimonial home has been sold and there are funds in trust, the deficit shall be paid equally from both parties’ shares. If the matrimonial home has not yet been sold, the parties shall each cover 50% of the deficit out of pocket.

s. The parties shall endeavour to settle the issue of costs. If they are unable to do so, then each party shall serve and file written costs submissions of no more than 3 pages in writing, not including a Bill of Costs or Offers to Settle within 10 days of the release of this Endorsement.

M. Kraft, J.