Court File and Parties
CITATION: Bolibruch v Waters, 2026 ONSC 371
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Stanley Bolibruch, Applicant
AND:
Debbie Waters, Respondent
Ana Bolibruch, Respondent
BEFORE: The Honourable Mr. Justice A. Pazaratz
COUNSEL: Applicant, Self-Represented
Deborah Barfknecht, Counsel, for the Respondent, Debbie Waters
Clare Hopkins, Counsel, for the Respondent Ana Bolibruch
HEARD: January 16, 2026
ENDORSEMENT
[1]
Background
The Applicant husband is 59. The Respondent wife is 63.
2They married on July 25, 2009. They have no children.
3They separated physically on Dec 24, 2019 at which time the husband was charged with 8 counts in relation to domestic violence. He was removed from the matrimonial home and has not been permitted to return there. The wife has continued to occupy the jointly owned property.
4The criminal charges ultimately resulted in a peace bond, in part because the husband’s trial was delayed too long. When the peace bond expired, it was replaced by a family court restraining order which is in effect. As well, the wife now has an interim order for exclusive possession.
5There is an interim support order. The husband has made minimal payments, with arrears totalling $53,068.59. FRO has suspended the husband’s licence, but they have had difficulty pursuing a default hearing because FRO apparently has no address to serve the husband. The wife says the father lists his address as the Brock residence – but he’s not living there, she is.
6On this topic, the husband has indicated he does not wish to disclose his residential address for safety reasons. However he confirmed that his mailing address is 373 Old Brock Road, Dundas, Ontario L9H 5J1. His email address is surreal1@cogeco.ca. His telephone number is 905 730-8776. Mr. Bolibruch confirmed that anyone – including the Family Responsibility Office – can effect service on him by serving him by ordinary mail or by email at those addresses.
7This complicated file has been proceeding extremely slowly. The husband says he’s gone through five lawyers, and has been representing himself since November 2025. Ms. Barfknecht has only recently been retained by the wife.
8At long last, there seems to be some movement toward resolution. A trial is scheduled for the sittings of May 11, 2026.
[9]
The Motions
But the husband’s December 4, 2025 motion seeks an immediate sale of the Brock property. The wife has brought a cross motion opposing the sale, and seeking to amend her pleadings to request an order that the property be vested in her name.
10The wife also seeks Questioning. The husband and his mother oppose Questioning. However, there has already been an order for Questioning which never took place. The facts are complicated enough that Questioning is essential prior to a potentially lengthy trial.
11Among the complicated issues and factual disputes relating to Brock:
a. The parties agree Brock is currently registered in joint names.
b. There is a $500,000 mortgage registered against the property in favour of the husband’s mother Ann Bolibruch, who has been added as a party.
c. There is a very complicated history of how the property came to be transferred from the husband’s parents to him, with the property being carved off from adjacent property where the husband’s mother still resides.
d. There is disagreement about whether there were any encumbrances against the property when it was transferred into the names of the parties jointly.
e. There are disputes about whether an earlier $450,000.00 mortgage registered against the property was valid – and whether the current $500,000.00 mortgage registered against the property is valid.
12The husband says he has been prejudiced by being denied his equity in the property during six years of unproductive litigation. But as the Applicant herein he must assume his share of responsibility for the delay. Neither party has taken meaningful steps to bring this dispute to a conclusion.
13The husband proposes that the property be sold immediately and that the usual closing fees and encumbrances be paid out – including the $500,000.00 mortgage to his mother. His mother supports his request. She is content that the disputed mortgage funds be held in trust pending trial.
14The husband proposes that his arrears of support be paid out from the net proceeds. The wife wants to go further, and now seeks an order vesting the property in her name. That claim has not been formally pleaded, so an amendment is required. Although the father opposes the requested amendment, I accept that the mother’s failure to raise this issue at an earlier stage (when she was unrepresented) was an oversight. As well, the factual basis for a Vesting order has evolved, given the continuing non-payment of spousal support.
15The mother’s Application is deemed to include a claim for a Vesting order. She may serve an Amended Application within 10 days, in which case the Respondents may serve an Answer. But given the time frame, the mother is not required to formally file an Amended Application.
[16]
The Law
The legal considerations in relation to a request for interim sale of jointly owned property include the following:
a. Section 10 of the Family Law Act and sections 2 and 3 of the Partition Act govern the partition and sale of property held in a joint tenancy or as tenants in common.
b. Section 2 empowers the court to order the sale of a jointly owned property, including a matrimonial home. McNeil v. McNeil, 2020 ONSC 1225 (SCJ).
c. 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 (SCJ); Marchese v. Marchese, 2017 ONSC 6815(SCJ); Jama v. Basdeo, 2020 ONSC 2922 (SCJ); Davis v. Davis; Brienza v. Brienza, 2014 ONSC 6942 (SCJ); Dhaliwal v. Dhaliwal 2020 ONSC 3971(SCJ); Howard v. Howard, 2022 ONSC 6915 (SCJ); Joseph v. Molnar, 2023 ONSC 4272 (SCJ); Brohman v. Brohman, 2025 ONSC 1667 (Div Ct).
d. 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 Doucett, 2020 ONSC 3386 (SCJ).
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 (SCJ); Dhaliwal v. Dhaliwal 2020 ONSC 3971(SCJ); Howard v. Howard, 2022 ONSC 6915 (SCJ); Brohman v. Brohman, 2025 ONSC 1667 (Div Ct).
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), 1 O.R. (3D) 436 (ON CA); Jama v. Basdeo; Steele v Doucett; Szabo v. Szabo-Jukes, 2024 ONSC 5433 (Div Ct).
g. To avoid partition and sale, the responding party must show that they would be prejudiced by the order, either because they have an order for (or are entitled to) exclusive possession, or because their claims at trial will be prejudiced by an immediate sale. Copeland v. Copeland, 2017 ONSC 4475 (SCJ); Latinovich v. Ferri 2022 ONSC 1677 (SCJ).
h. The court can refuse partition and sale if oppression is shown. Akyuz v. Sahin 2023 ONSC 1024 (SCJ).
i. Each case must be considered on its own facts. The court must consider all relevant factors in exercising its discretion. Davis v. Davis, [1954] O.R. 23 (C.A.); Steele v Doucett.
j. 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), 2 O.R. (2d) 713 (ON CA).
k. 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 (SCJ); Latcham v. Latcham (2002), 27 R.F.L. (5th) 358 (ON CA); Dulku v. Dulku, 2016 CarswellOnt 16066(SCJ).
l. 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 (SCJ); Giglio v Giglio 2015 ONSC 8039 (SCJ); Keyes v. Keyes, 2015 ONSC 1660 (SCJ); Dhaliwal v. Dhaliwal 2020 ONSC 3971(SCJ).
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 (SCJ); Martin v. Martin. 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 (SCJ).
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 (SCJ).
o. Similarly, interim sale may be disallowed if the resisting spouse has an arguable case for an order vesting the property in their name alone related to a claim for equalization or spousal support. Akyuz v. Sahin 2023 ONSC 1024 (SCJ).
p. 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?
[17]
Analysis
The husband’s request for an interim sale is inappropriate at this time.
a. While there is no doubt that the six-year delay in resolving issues has been prejudicial to all parties, they all share responsibility for allowing the file to move so slowly. It is inappropriate to allow a file to languish unproductively, and then try to resolve contentious issues by way of a late-stage motion, rather than proceeding to trial. Gafanha v. Gafanha, 2022 ONSC 1613 (SCJ); Crozier v. Nolin, 2024 ONSC 4343 (SCJ); Sham v. Lee, 2024 ONSC 6598 (SCJ); Persaud v. Jeffrey, 2024 ONSC 6678 (SCJ); Bourque v Luker, 2025 ONSC 941 (SCJ).
b. There are serious property and support issues to be determined, including the validity of a mortgage. Fortunately, the parties have a trial date only four months away.
c. Particularly in the context of the husband not contributing to the property’s expenses since separation – and effectively not paying any spousal support, allowing significant arrears to accumulate – I find that sale at this time might prejudice some of the claims the wife intends to pursue at trial.
d. The wife says significant disclosure is still outstanding by the husband. It is unclear why that hasn’t been resolved in all this time. But if there is disclosure outstanding, this delays resolution of property issues and entitlements.
e. The husband says property tax arrears of more than $27,000.00 will soon result in the City taking action against the property. The wife says she borrowed funds to reduce the tax arrears, to hold the City off.
f. The husband proposes that some money could be released to both parties upon a pre-trial sale. But without her full equity and confidence in support payments, the wife would be prejudiced by being displaced with insufficient information as to her options, and insufficient funds.
g. It might be different if this issue was pursued more diligently. But after allowing six years to elapse, it is difficult for anyone to characterize the sale as urgent, just months before a trial.
h. The husband says he needs funds to retain counsel. But he says he’s gone through five lawyers, so he’s had some ability to retain counsel in the past. In any event, he prepared thorough materials for this motion, and he has the benefit of his mother having retained counsel who will be pursuing the major issue of the validity of the mortgage.
[18]
Disposition
The husband’s motion for sale of the property is dismissed.
19The wife’s motion to amend to include a Vesting order is granted.
20Questioning of all parties is to take place on January 26, 2026.
21The Settlement Conference/Trial Scheduling Conference scheduled for January 22, 2026 is vacated, because clearly the parties will not be ready. A SC/TSC is scheduled for March 11, 2026 at 9:30 a.m. by Zoom. An updated joint Trial Scheduling Endorsement Form is to be prepared for the return date, along with Settlement Conference briefs.
22The husband shall pay to the wife costs of today’s motion fixed at $1,500.00, payable when the issue of the house is disposed of.
Pazaratz J.
Date: January 16, 2026