Lee v. Wallace, 2026 ONSC 3661

CITATION: Lee v. Wallace, 2026 ONSC 3661

COURT FILE NO.: FS-25-00049508-0000

DATE: 20260217

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JEE HEE LEE

Applicant

– and –

MIKE ANTHONY WALLACE

Respondent

Irina Dvais, counsel for the Applicant

Self-represented

HEARD: Tuesday February 17, 2026

MOTION ENDORSEMENT

SHIN J:

1The applicant has brought this motion seeking an order that:

(a) the respondent fully cooperate and sign the necessary paperwork to close the sale of the matrimonial home failing which his instructions and signatures shall be dispensed with;

(b) $20,000 of the net sale proceeds from the sale of the matrimonial home be released to the applicant with the balance to be held in trust; and

(c) the primary residence of the two children be with the applicant on a temporary and without prejudice basis.

2The parties were married on May 17, 2019 and separated on March 16, 2025. They have two children. The older child is 9 years old and the younger child is 6 years old. The younger child is autistic, non-verbal and has been diagnosed with Williams Syndrome.

3The applicant is employed as a nurse at a hospital. During the marriage, she was the primary income earner and is the sole owner of the matrimonial home. The respondent does not work.

4The parties remained in the matrimonial home post-separation together with the children until just this past weekend. The applicant has been paying all expenses related to the house. The parties relationship has been very difficult. The CAS has been involved with the family.

5As outlined in the applicant’s affidavit evidence, there is a history of difficulty obtaining cooperation from the respondent on many issues in this litigation, including regarding the sale of the matrimonial home.

Preliminary Issue

6The respondent did not attend today. I proceeded with this motion on an uncontested basis in his absence as:

• the respondent did not file any responding materials and therefore the applicant’s affidavits are uncontested;

• I was satisfied that the respondent chose not to attend despite being properly served with the applicant’s motion materials and being aware of the motion including the date, time and location of the hearing; and

• there is urgency to this motion given the fast approaching closing date for the sale of the matrimonial home.

7On February 4, 2026, counsel for the applicant put the (then) agent for the respondent on notice of this motion and the specific relief requested. When counsel served the motion materials on the agent on February 6, 2026, the agent advised she was no longer assisting the respondent and counsel served the respondent directly by email. Counsel also reached out to the respondent about the motion confirmation form on February 11, 2026 and received no response. On February 13, 2026 counsel forwarded the Zoom link to the respondent and reminded him of today’s hearing date. On February 15, 2026, counsel served her bill of costs on the respondent. At 10:31 am today, shortly before this motion was heard, counsel sent another email to the respondent inquiring about his attendance. Despite all of these efforts, the respondent has been completely unresponsive.

8There is no indication that the respondent has communicated with the court to advise of any issue regarding his attendance. I was in court on the same Zoom link provided to the respondent until 3:40 pm and at no point did the respondent sign in.

Sale of the Matrimonial Home

9The parties consented to an order for the sale of the matrimonial home: consent order of Diamond J. dated August 21, 2025 (Case Center A88). The parties have followed through with the steps outlined in Diamond J.’s order, albeit with difficulty, and the first offer to purchase the house, made on December 31, 2025, was accepted. The house is scheduled to close on February 27, 2026.

10In these circumstances, the court has jurisdiction to make the necessary orders to ensure that the sale proceeds and closes: s. 23 of the Family Law Act, R.S.O. 1990, c. F.3; Flores v. Flores, 2020 ONSC 5809, at paras. 49-52.

11The evidence satisfies me that there is a real risk that the respondent will fail to provide the authorizations or sign the paperwork necessary to close the sale on February 27, 2026. While the consent order does not specifically order the parties to sign the paperwork and provide the authorizations necessary to close the sale, in my view any failure to do so by either party would be contrary to the consent order.

12There is significant prejudice to the applicant should the respondent fail to complete the closing. In anticipation of the closing, the applicant has signed a lease for an apartment for herself and the two children and they moved into it this past weekend. Should the sale fall through, she cannot afford to carry the mortgage and expenses on top of the rent she is now contractually bound to pay. Moreover, there would be a risk that the buyers will commence litigation against the applicant should the sale fall through.

13I am unable to find any prejudice to the respondent on the record before me.

14Accordingly, I grant the order permitting the applicant to close the sale of the matrimonial home as set out in paragraph 1 of the applicant’s draft order as updated today (Case Center A155) (“Updated Draft Order”).

Proceeds from the sale of the matrimonial home

15The net sale proceeds from the sale of the matrimonial home are estimated to be approximately $334,000. The applicant seeks the release of $20,000 of the net sale proceeds to her with the balance to be held in trust. I accept that the applicant needs these funds to meet the financial burdens she is currently facing.

16To date, the respondent has failed to provide any financial disclosure whatsoever contrary to his obligations to do so. The applicant has provided her disclosure regarding her net family property. As such the applicant has been unable to finalize any equalization calculation. Assuming that the respondent has no assets, the applicant estimates the equalization payment she will owe the respondent to be $37,000.

17It appears the respondent does not work and may not have any assets. At the hearing, I inquired whether the applicant was agreeable to releasing the same amount of $20,000 to the respondent in light of her estimated equalization payment and the respondent’s current circumstances. After receiving instructions, counsel for the applicant advised that she is agreeable to the release of $10,000 to the respondent.

18The evidence establishes that the applicant has already given the respondent $10,000 in cash on January 9, 2026.¹ Accordingly, I agree that the release of $10,000 from the net sale proceeds is a fair amount.

19Accordingly, I grant the order for the release of $20,000 to the applicant and $10,000 to the respondent with the balance of the net sale proceeds to be held in trust as set out in paragraph 2 of the Updated Draft Order.

Primary residence of the children

20Pursuant to s. 16 of the Divorce Act, R.S.C., 1985, c. 3 (2^nd Supp.), the best interests of the children are the only consideration in making a parenting order. The factors that must be considered in determining the best interests of the children are set out in s. 16(3) and I have taken them into account.

21The applicant has outlined her plan of care for the children in her affidavit evidence. She has rented an apartment suitable for the children and close to her work, which they have now moved into. She has enrolled them in schools close to this new location and they started there today. She is looking to secure daycare for them as well.

22The applicant deposes that she has serious concerns for the children’s safety. There are allegations regarding family violence and coercive control by the respondent. The applicant deposed that the respondent refuses to acknowledge the younger child’s autism diagnosis and has refused to consent to counselling for the older child amongst other things he has refused to agree to in relation to the children. The evidence establishes that the parties are unable to communicate effectively about the children.

23Despite the respondent being aware that the applicant was seeking a temporary order for the primary residence of the children as I have already outlined, he has chosen not to respond to this motion. He has not provided the applicant with any information as to where he plans to live despite the inquiries made. As a result, I have no information regarding his plan of care, where he will live and whether his accommodations would be appropriate for the two children.

24Based on the evidence before me and taking into account the factors set out in s. 16(3) of the Divorce Act, particularly subsections (a), (c), (f), (h) and (i), I agree with the applicant that at this time, it is in the best interests of the children that their primary residence be with her.

25I make the order that the children shall primarily reside with the applicant. This order is made on a temporary basis and without prejudice to either party’s ability to bring a motion regarding parenting. To be clear, any such motion may only be brought if the requirements as set out in Rule 14, Family Law Rules, O. Reg. 114/99 (for example the requirement in R 14(4) that the issue be conferenced before the motion is brought) and any practice directions are met. I will amend paragraph 3 of the Updated Draft Order accordingly.

Costs

26The applicant is presumptively entitled to costs of this motion as she is the successful party: R. 24, Family Law Rules. The applicant seeks full recovery costs based on the fact that she made an offer to settle this motion on February 11, 2026 and in order to discourage and sanction the respondent’s behaviour in relation to this motion.

27As I advised counsel for the applicant at the hearing, I would review the bill of costs and the offer to settle only after I determined the merits of the motion. I have now done so. Full recovery costs claimed (including the estimated three hours for the preparation for and attendance today) are $11,653.41 inclusive of disbursements and tax. The time spent by counsel and the law clerk is reasonable. Their hourly rates are also reasonable.

28The offer to settle meets the requirements in R. 24(12) of the Family Law Rules and the applicant is entitled to full recovery of the costs incurred on and after February 11, 2026.

29The applicant should not have had to bring this motion. She and her counsel made all reasonable efforts to avoid this result. All attempts to engage in discussions to avoid a motion have been met with silence. Further, there is evidence that rather than responding to counsel’s inquiries regarding the closing and other issues on this motion, the respondent communicated to both the applicant and the real estate lawyer asking when he would receive half of the net sale proceeds of the matrimonial home. This behaviour is at the very least clearly inappropriate and ought to be sanctioned in the hopes that it will discourage him from continuing in this fashion as the litigation continues: R. 24(14), Family Law Rules.

30While full recovery costs are justified, I have taken into account the potential for financial hardship to the respondent resulting from any costs order, while also recognizing the financial burdens on the applicant. I take into account that the respondent does not work. Moreover, it is unknown where he will live and whether he has funds beyond the $10,000 the applicant has already given him (as I noted above) to afford new accommodations and to meet his basic needs. The $10,000 the applicant has already provided to the respondent should be sufficient to meet his basic needs as he transitions out of the matrimonial home.

31I find that all inclusive costs of $10,000 are fair, reasonable and proportionate in all the circumstances. This amount is to be set off from the $10,000 released to the respondent from the net sale proceeds.

Conclusion

32The applicant’s motion is allowed. I have amended Updated Draft Order to reflect this endorsement and have signed it. The order will be released together with this endorsement.

The Honourable Justice L. Shin

Footnotes

1. 1I note that the applicant only provided these funds because the respondent refused to sign the only offer on the home unless she gave him $10,000: Applicant’s February 6, 2026 affidavit at para. 9 (Case Center A81) and Exhibit B (Case Center A92). The applicant’s position is that the $10,000 she provided is an advance on the equalization payment she estimates she will owe to the respondent.