Court File and Parties

Citation: Atif v. Munir, 2026 ONSC 3240 Court File No.: FS-26-00114199-0000 Date: 2026-06-02 Superior Court of Justice – Ontario 7755 Hurontario Street, Brampton ON L6W 4T6

Applicant: Farhana Atif Counsel: Christine Marchetti (christine@marchettifamilylaw.com)

Respondent: Atif Munir Counsel: Self-represented (atif74@hotmail.com)

Before: Justice McGee Heard: May 21, 2026 (Videoconference)

Result

1Ms. Atif asks for an Order dispensing with Mr. Munir’s consent to the renewal of a joint mortgage that is secured on the parties’ jointly owned Brampton home (“the home”) pursuant to section 23(b) of the Family Law Act (“the Act.”)

2For the reasons set out below, Order to issue per draft Order signed this day.

Brief Background

3The parties are former spouses who married in 2003. They are the parents of an adult daughter. In 2019, a year after they separated in June of 2018, Mr. Munir fled Canada to escape arrest on three counts of sexual assault against minors. Ms. Atif understands that Mr. Munir now resides at D-18 Sunjani Army Welfare Trust, Islamabad, Pakistan.

4Since Mr. Munir left the country, Ms. Atif has singularly maintained the parties’ home and raised their daughter. She has struggled to manage the various debts secured against the home that Mr. Munir incurred post separation.

5Ms. Atif has been unable to resolve any of the financial and legal issues arising from the end of the marriage because Mr. Munir has made no contact since he left. He has not responded to any email communications from counsel.

6Pakistan is a country that requires service through the Hague Convention. This Application was issued on January 9, 2026 and was thereafter sent via courier to the Central Processing Authority in Canada for service in Pakistan. Confirmation of service remains outstanding.

7The Application pleads a claim for an Order vesting the home in Ms. Atif’s sole title pursuant to section 9(1) and/or 34(1) of the Act, and section 100 of the Courts of Justice Act as a remedy for unjust enrichment, child and spousal support, section 7 expenses, Mr. Munir’s one half share of the carrying costs of the home, debts assumed on his behalf and an equalization payment.

8The joint mortgage registered against the matrimonial home is now due to be renewed. Mr. Munir’s signature is required because the mortgage is held jointly. Without his consent, or a dispensation of his consent, the mortgage will renew at a higher rate than that available on a variable or a fixed 5-year term. Ms. Atif fears that the automatic renewal amount will be beyond her financial means.

9Ms. Atif seeks the following relief:

a. An Order that this Motion be heard on an urgent basis in advance of the service of the Application and in advance of a Case Conference.

b. An Order that this Motion be heard without Notice to the Respondent.

c. An Order that the Applicant is permitted to renew the joint Scotiabank Mortgage #259053-1 in the amount owing as at the date of the renewal, without the consent of the Respondent.

10Mr. Munir was served with this Motion on May 12, 2026 by email. He has not contacted Ms. Atif, nor has he filed any materials in reply to this motion. An Order was previously granted for this Motion to be heard ex-parte, in advance of service of the Application and the hearing of a Case Conference.

Section 21(1)(c) and 23(b) of the Family Law Act

11Section 21 of the Act prevents a spouse from disposing of, or encumbering an interest in a matrimonial home unless the other spouse joins in the transaction, has previously released his rights, or

21(1)(c) a court order has authorized the transaction or has released the property from the application of this Part.

12The court’s jurisdiction to authorize a transaction without a spouse’s consent, that is, to dispense with a spouse’s consent or to release a property from the application of section 21 is guided by section 23 of the act which reads:

Powers of Court Respecting Alienation

23 The court may, on the application of a spouse or person having an interest in property, by order,

(b) authorize the disposition or encumbrance of the matrimonial home if the court finds that the spouse whose consent is required,

(i) cannot be found or is not available,

(ii) is not capable of giving or withholding consent, or

(iii) is unreasonably withholding consent, subject to any conditions, including provision of other comparable accommodation or payment in place of it, that the court considers appropriate.

13The language of Section 23 allows the court to interpret it permissively, and in a manner that does not oust its discretionary jurisdiction to do justice on a case-by-case basis.

14Ms. Atif acknowledges that there is a line of cases, such as Nani v. Nani, 2021 ONSC 1368, that suggests that sections 21 and 23 are meant to protect non-titled spouses from the unilateral actions of the titled spouse in connection to a matrimonial home that may defeat or hamper the non-titled spouse’s ability to recover legal entitlements.

15Here, both parties are titled owners of the home, and it is Ms. Atif who seeks within this Application to protect her ability to recover her legal entitlements, such as support, post separation adjustments and an equalization payment. If she is unable to carry the financing for the home, the home may be lost before her claims within the Application are determined.

16In Norris v. Norris, 2016 ONSC 7077, Justice Corthorn dispensed with the consent of a spouse in not unsimilar circumstances. In that case, the husband initially entered into the encumbrance, and the Wife sought to refinance it at a lower rate because she was the sole party serving the debt.

Analysis

17Section 23(b) of the Act is familiar to property owning spouses as a statutory basis upon which to seek an Order dispensing with the consent of the other spouse to the sale of a property when that spouse cannot be found, is unavailable, lacks capacity or is unreasonably withholding consent.

18For very good reason, it is uncommon for section 23(b) of the Act to be relied upon for the dispensing of a spouse’s consent to an encumbrance on title. The design of the Family Law Act is to promote financial finality between former spouses through a “clean break” of all property entitlements. Moreover, no spouse has the legal authority to bind the other spouse, even within marriage, to contractual obligations with a third party, such as a Bank.

19At the same time, there are a minor subset of circumstances in which a spouse may seek to dispense with the other spouse’s consent to an encumbrance on title to preserve equity pending a final determination. Such cases do not offend either the principle of a clean break, or the contractual inability to bind a spouse, provided that the encumbrance a) is already enforceable against the non-consenting spouse b) the amount of the encumbrance is not being increased and c) there is no prejudice to the non-consenting spouse that cannot be ameliorated in the course of the proceeding.

20Here, Mr. Munir consented to the original mortgage, the outstanding balance of which has been reduced by Ms. Atif in the years since he left Canada. The outstanding balance remains secured against title to their home. The balance will continue to incur interest charges whether or not his consent to a renewal is dispensed and will do so at a higher rate and on less favourable terms than those otherwise available. The only potential prejudice to Mr. Munir is a future interest penalty if the home is sold prior to the end of a fixed term mortgage (should that be the form of mortgage renewal chosen by Ms. Atif.)

21I do not find that a future interest penalty is prejudicial to Mr. Munir in a manner that cannot be later ameliorated. If Ms. Atif is unsuccessful in her claim for a vesting Order, and the home must be sold, an adjustment can be made to the net sale proceeds to hold Mr. Munir harmless from one half of the penalty, less any savings accrued to him on account of the lower interest rate from the time of renewal.

Conclusion

22In these circumstances, I find that section 23(b)(i) of the Act is a sufficient statutory basis upon which I may dispense with Mr. Munir’s consent to a renewal of the mortgage. Simply stated, it will preserve a joint asset pending a final determination of the claims within this Application by maintaining a pre-existing financial obligation at a more advantageous rate of interest.

Costs

23The Applicant seeks a full recovery of her costs for this motion in the amount of $3,301.49, calculated as $2,921.68 in fees and HST thereon of $379.81.

24Rule 24(1) of the Rules provides that a court shall make an award of costs promptly after dealing with a step in a case by determining who, if anyone, is entitled to costs in relation to that step and the amount of any costs. Rule 24(3) establishes that otherwise provided in the Rules, there is a presumption that a successful party is entitled to the costs.

25Costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants and (4) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules. See: Mattina v. Mattina, 2018 ONCA 867.

26In reviewing Ms. Atif’s Bill of Costs, the factors in Rule 24(14) of the Family Law Rules and recognizing the novelty of this Motion which required additional legal analysis, I am prepared to award the whole of the amount sought. The amount for fees is fair, reasonable and proportionate to the work completed and ought to be well within the expectation of a non-participating party to pay. Whether or not Mr. Munir is aware of this Application, he knows that he is a property owner and a mortgagor with rights and obligations to the lender. His inaction in addressing his obligations has transferred the costs of this motion to Ms. Atif, whom I find should be relieved from such costs.

27Costs fixed in the amount of $3,301.49 and are payable to Ms. Atif in 30 days.