“The husband seeks an order for sale of the parties’ two jointly owned properties: the matrimonial home on Lynnhaven and the parties’ cottage in Tiny, Ontario. The wife resists the sale of the properties.
The wife argues that the husband is not entitled to force the sale of the properties under the Family Law Act, R.S.O. 1990, c. F.3, because the provisions of the Family Law Act dealing with sale are only engaged where ownership of a property is in issue. In this case, there is no dispute that the properties are jointly owned.
The wife argues that the husband would thus be limited to seeking sale before trial based on the Partition Act, R.S.O. 1990, c. P.4. However, she argues that he has not pleaded the Partition Act. She relies on the Court of Appeal decision in Martin v. Martin, (1992) 1992 CanLII 7402 (ON CA), 8 O.R. (3d) 41 (C.A.) to argue that the failure to plead the Partition Act is fatal to his claim.
The husband has pleaded the Partition Act in his Amended Notice of Motion. The wife states this is insufficient, but I disagree. In Mignella v. Federico, 2012 ONSC 5696, at para. 21, Price J. noted that the party seeking sale had not pleaded the Partition Act in either his Notice of Motion or his Application; by doing so Price J. implied that pleading the statute in either document would have been sufficient. I agree with this approach.
The point of pleading a statute is to alert the other party of the basis for the relief one seeks. Here, it comes as no surprise to the wife that the husband seeks sale of the properties. She is not prejudiced by the fact that the statute is pleaded in the Amended Notice of Motion as opposed to in the Application. To defeat the husband’s claim to sale on the basis that he pleaded the statute in the wrong document would be to elevate form over substance and would, in my view, be inconsistent with the primary objective contained in r. 2 of the Family Law Rules O. Reg. 114/99. It would force the husband to seek to amend his Application to plead the Partition Act and then renew his motion for sale, which in turn would cause the parties to incur additional costs and force further court attendances, all in waste of parties’ and the court’s resources.”