Siegel's Family Court Calendar

“What Bilah is seeking from this Court does not fall under the scope of s.6 of the Arbitration Act. Rather, Bilah argues that the Arbitrator’s finding that he lacked jurisdiction to make the financial disclosure order she requested is the reason she comes to this Court asking for relief.

There are cases where this Court has made financial disclosure orders in the context of a family law case in the midst of an arbitration. However, these orders have been made generally to compel a non-party to make disclosure because he/she or a company have not been a party to the Mediation/Arbitration agreement and, as a result, the Arbitrator has no jurisdiction over the non-party.

For example, in Garnet v. Garnet et. al., 2016 ONSC 949 (CanLII), Jarvis, J. considered a request by the wife for financial disclosure which the husband claimed was in the possession and control of a third party in the midst of an arbitration. Since the third party was not bound by the arbitration agreement, the arbitrator had no jurisdiction to order production against him. Jarvis, J. held that the arbitrator’s lack of jurisdiction “does not preclude this court from ordering such disclosure in appropriate circumstances.”

At paragraphs 10-13, Jarvis, J. stated:

[10]  Family law arbitrations are governed by the Arbitrations Act, S.O. 1991, c. 17 and the Family Law Act and, in the event of a conflict, the latter Act prevails.  Paragraph 9.7 of the parties’ Arbitration Agreement requires the parties, unless they agree otherwise, to comply as in court proceedings with the Family Law Rules.

[11]  Family Law Rules 19 (11) and 20 (24) deal with documentary disclosure from a non-party and the confidentiality obligation imposed on the recipient of that disclosure.

(11) If a document is in a non-party’s control, or is available only to the non-party, and is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,

(a) order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and

(b) order that a copy be prepared and used for all purposes of the case instead of the original.

(24) When a party obtains evidence under this rule, rule 13 (financial disclosure) or rule 19 (document disclosure), the party and the party’s lawyer may use the evidence and any information obtained from it only for the purposes of the case in which the evidence was obtained, subject to the exceptions in subrule (25).

[12]  The third party in this case is not a signatory to, or bound by, the Arbitration Agreement signed by the spousal parties and so the arbitrator has no jurisdiction to order production against him.  But that does not preclude this court from ordering such disclosure in appropriate circumstances: Lafontaine v. Maxwell, 2014 ONSC 700 (CanLII).

[13]  In Lafontaine, disclosure was ordered from non-party business associates of the husband.  Accepting that considerable efforts had already been made by the husband and non-party in that case to answer the wife’s information requests, the court was not prepared to disagree with the arbitrator’s decision that certain specified information needed to be produced.  This case is little different in my view.  No appeal was taken by the husband to the award made by the arbitrator on May 20, 2015 that documents be produced and, equally as pertinent, the arbitrator expressed no view about the relative probity of the disclosure sought.”

Medjuck v. Medjuck, 2024 ONSC 2980 (CanLII) at 29-32

“A decision to pursue self-employment where a payor earns no income, is not a reasonable choice. A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children.: Norris v. Riley, 2023 ONCH 121 (CanLII), at para. 95 (g) and 98(c).

However, income cannot be imputed to a party without there being sufficient evidence to ground an income to impute. The party attempting to impute income must provide a breakdown of how the figure being sought to impute was calculated. While the imputation of income is not an exact science, the amount to be imputed as to reference real evidence: Albanez v. Samuda, 2019 ONSC 3610.

The onus is on Fiona, since she is seeking the imputation, to “establish an evidentiary foundation for the intentional unemployment or under-employment: employment”: McNeil v. Dunne, 2019 CarswellOnt 6388 (S.C.J.), para. 50. The spouse need only show a prima facie case: McNeil v. Dunne, supra, para. 72. Once established, the burden shifts to the other party “to satisfy the court as to their income level and that income should not be imputed”: A.E v. A.E., 2021 CarswellOnt 18880 (S.C.J.), para. 258. In other words, “the onus shifts to the individual seeking to defend the income position they are taking”: McNeil v. Dunne, supra, para. 72.”

            Bagust-Homes v. Devine, 2023 ONSC 2978 (CanLII) at 46-48

“Rule 31 of the Family Law Rules governs contempt motions based on a party’s alleged failure to comply with a court order.

The Court of Appeal in Ontario has clearly stated that in family law litigation, the civil contempt remedy is one of last resort. A contempt order should not be granted where other adequate remedies are available to the aggrieved party, such as a variation of an order or enforcement of one. Great caution should be exercised when considering contempt motions in family law cases. Contempt findings should be made sparingly and only where conferences to resolve problems or motions for enforcement have failed: Hefkey v. Hefkey, 2013 ONCA 44, at para. 3.

The contempt power is to be used with restraint and in exceptional circumstances – essentially to respond to circumstances where it appears to be the only reasonable means to send a message to the litigant that court orders are not to be flaunted. That approach is consistent with the design of the Family Law Rules as a whole to enable a court to deal with a case justly, with particular attention to subrule 2(3) and 2 (4) of the Rules: Teal v. Teal, 2020 ONSC 6395, at para. 37; Ricafort v. Ricafort, 2006 ONCJ 520, at para. 17.

In Ruffolo v. David, 2019 ONCA 385, the court stated the following:

[18]   We add two brief comments. First, as explained in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 36, contempt orders should not be so readily granted by motion judges:

 The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders. If contempt is found too easily, “a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect.” As this Court has affirmed, “contempt of court cannot be reduced to a mere means of enforcing judgments.” Rather, it should be used “cautiously and with great restraint”. It is an enforcement power of last rather than first resort”. [Citations omitted.]

[19]   Second, where the main issues to be decided concern access to children, the best interests of the children should be the paramount consideration. In this case, with the court’s assistance, the parties have, since the contempt hearing, taken steps to involve professionals to speak and work with the children to address their relationship with the respondent. Such steps are to be encouraged.

In Chong v. Donnelly, 2019 ONCA 799, the court added:

[12]   In our view, the motion judge’s failure to consider these discretionary factors before making a finding of contempt was an error of law. It is especially important for courts to consider the discretion to impose a contempt finding in high-conflict matrimonial cases such as this one. We note, in fairness to the motion judge, that she refused to impose any penalty but that still left the appellant with the opprobrium of a contempt order. We are persuaded that while it was proper to find that the appellant had breached the order, it was not in the interests of justice in the context of this case to add a formal order of contempt.

In Moncur v. Plante, 2021 ONCA 462, Jamal J.A. set out the general principles governing the use of the court’s power to find a party in civil contempt for breaching a court order, at para. 10:

1. 1. 1. 1. 1. For a party to be found in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have had actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26.
            2.  Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799, 33 R.F.L. (8th) 19, at paras. 9-12; Valoris pour enfants et adultes dePrescott-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at paras. 18-19.
            3. When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo,at para. 19; Chong, at para. 11; and Valoris, at para. 41.

The contempt remedy is primarily remedial and aimed at encouraging compliance with the court order: Kim v. McIntosh, 2023 ONSC 5121, at para. 23.

In Jackson v. Jackson, 2016 ONSC 3466, at para. 56, Justice Chappel summarized the following principles regarding the use of contempt in family court proceedings:

a)      it ultimately remains a matter for the Court’s discretion;

b)     because of its seriousness and quasi-criminal nature, it must be used cautiously and with great restraint;

c)      it cannot be reduced merely to a mechanism for enforcing judgments;

d)     it should be used sparingly and as a measure of last resort where there are no other adequate remedies available;

e)      it is typically reserved for cases involving defiant conduct that is at the most significant end of the spectrum and where it appears to be the only reasonable means of sending a message to a litigant that court orders cannot be flaunted;

f)      the complex emotional dynamics involved in family law disputes and the desirability of avoiding further escalation of the conflict between the parties are additional factors that prompt a cautious approach.

The onus is on the person alleging contempt to prove it beyond a reasonable doubt: Antoine v. Antoine, 2024 ONSC 1397, at para. 20; Kim, at para. 16; Snively v. Gaudette, 2020 ONSC 2895, at para. 19. Hearsay evidence is not admissible: Snively, at para. 19, unless it is not disputed: r.14(19). The criminal standard of proof beyond a reasonable doubt applies: Moncur v. Pante, 2021 ONCA 462 at para. 10(1).

If there is a conflict as to material facts in the affidavits, there should be a viva voce hearing: Fischer v. Milo (2007), 2007 CanLII 40211 (ON SC), 44 R.F.L. (6th) 134 (Ont. S.C.); N.B. v. A.B., 2021 ONSC 3467, at para. 27.

Having regard for the quasi-criminal nature of contempt, the alleged contemnor must be afforded the same protection and procedural safeguards as an accused in a criminal proceeding. This includes the right to a hearing, the right not be compellable as a witness at the hearing, and the right to make full answer and defence, including the right to counsel, to call evidence and to cross examine upon the other party’s evidence: Antoine, at para. 38.

Ultimately, in respect of each of the alleged breaches, the court must make the following findings:

1. 1. 1. 1. 1.   That the relevant order was clear and unambiguous;
            2.   The fact of the order’s existence was within the knowledge of the respondent (on the Motion) at the time of the alleged breach;
            3.   That the respondent intentionally did, or failed to do, anything that was in contravention of the order;
            4.   That the respondent was given proper notice of the terms of the order. S.H. v. G.H., 2010 ONSC 5615, at para. 43.

A judge retains an overriding discretion to decline to make a contempt finding even where the foregoing factors are met where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order. See: McKinnon v. McKinnon, 2018 ONCA 596, at para. 36.

The order alleged to have been breached must be expressed in clear, certain and unambiguous language. The person affected by the order should know with complete precision what he or she is required to do or to abstain from doing. Implied terms cannot be read into the order. If the order alleged to be breached is ambiguous, the alleged contemnor is entitled to the most favorable construction: Szyngiel v. Rintoul, 2014 ONSC 3298, at para. 20.

Although r. 31 of the Family Law Rules does not prescribe a particular format, contempt proceedings are generally bifurcated with the first phase addressing liability for contempt, and if liability is established, the second phase addressing the appropriate penalty: Antoine, at para 39; Carey v. Laiken, 2015 SCC 17, at para. 18.

If a finding of contempt is made, the contemnor is given the opportunity to purge the contempt, and the matter is usually adjourned for a second hearing to address sentencing or remedy. The contemnor’s efforts to purge contempt is a mitigating factor in the remedy to be imposed: Kim, at para. 22.”

            Barbara v. Cordeiro, 2024 ONSC 2951 (CanLII) at 3-18

“The rebuttable presumption of resulting trust arises upon gratuitous transfers between adults.  This means the transferee holds the beneficial ownership of the property in trust for the transferor unless the presumption is rebutted.  A beneficial owner has been described as “the real owner of property even though it is in someone else’s name”: Pecore v. Pecore, 2007 SCC 17 at para 4, citing Csak v. Aumon (1990), 1990 CanLII 8070 (ON SC), 69 D.L.R. (4th) 567 (Ont. H.C.J.), at p. 570.  The presumption of resulting trust can be rebutted by evidence establishing, on a balance of probabilities, the transferor’s intention to gift the property: Pecore, at paras. 24, 43 and 44.

This standard of proof requires “clear, convincing and cogent” evidence: F.H. v. McDougall 2008 SCC 52, at para. 46; MacIntyre v. Winter, 2021 ONCA 516 at para. 25.  In other words, absent this evidence, the presumption will determine the result: Pecore, at para. 44.

A party that seeks to establish that a transfer was a gift must show the following three conditions have been met, as set out in Falsetto v. Falsetto, 2023 ONCA 469, at para. 27:

a.   The donor intended to gift the property;

b.   The gift was accepted by the recipient; and

c.   A sufficient act of delivery or transfer of the property occurred to complete the transaction.”

McCready v. McCready, 2024 ONSC 2922 (CanLII) at 8-10

“The court of appeal dealt with contingent liabilities in Greenglass v. Greenglass, 2010 ONCA 675, 99 R.F.L. (6th) 271.  In Greenglass, at the valuation date, the husband faced contingent legal costs associated with litigation that had begun during the marriage.  In determining how to value this contingent liability, Epstein J.A., writing for the court, made the following observations, at paras. 26-27:

[C]ontingent liabilities are to be taken into account so long as they are reasonably foreseeable. See Leslie v. Leslie (1987), 1987 CanLII 8321 (ON SC), 9 R.F.L. (3d) 82 (Ont. H.C.); Nicol v. Nicol (1989), 1989 CanLII 8825 (ON SC), 21 R.F.L. (3d) 236 (Ont. H.C.); Crutchfield v. Crutchfield (1987), 1987 CanLII 8303 (ON SC), 10 R.F.L. (3d) 247 (Ont. H.C.); and Drysdale v. Drysdale (1994), 1994 CanLII 7453 (ON SC), 9 R.F.L. (4th) 20 (Ont. U.F.C.J.).

In determining the present value of a contingent liability, courts have looked at what was reasonably foreseeable on the valuation date: Johnston v. Johnston, [1998] O.J. No. 5495 (Gen. Div.), at para. 59, aff’d on other grounds 2000 CanLII 14718 (ON C.A.), leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 234.  In Drysdale, at paras. 14-17, Beckett J. noted that where courts have found no or a very low risk that a guarantee would be called at the valuation date, the value of the contingent liability has been determined to be nil.  However, in Drysdale it was found that there was a real possibility that the guarantee would be called upon, though the amount could not be predicted with any certainty.  Finding it unrealistic to value the liability at either zero or the full amount of $200,000, Beckett J. valued the liability at 50 percent of the amount in question: see also Salamon v. Salamon, [1997] O.J. No. 852 (S.C.J.).  This approach was approved by this Court in Cade v. Rotstein (2002), 2004 CanLII 24269 (ON CA), 181 O.A.C. 226 (C.A.). [Emphasis added].

For equalization purposes, the court is to value a contingent debt based on the probability that it would be collected.  Courts are frequently called upon to assess the actual worth of a claim, asset or liability, by discounting its face value where the evidence indicates it is unlikely that the debtor will ever be called upon to pay: see Zavarella v. Zavarella, 2013 ONCA 720, 117 O.R. (3d) 641, at para. 38.  To fairly calculate equalization, the court must make a realistic determination of the value of debt in a net family property calculation, and that determination is based on the reasonable likelihood that the debt will ever be paid: Zavarella, at para. 39.

This court has observed that it may be necessary to have expert opinion evidence to arrive at the present value of a future judgment on the valuation date: see Sheikh v. Sheikh, 2010 ONSC 1407, at para 47.  While hindsight evidence may not be permissible under any circumstances, it does not even arise in this case since the estate litigation was no further ahead at trial than it was on the valuation date.  This lack of progress may inform the assessment of the foreseeability or probability of the applicant being found liable to pay anything in the estate litigation.”

            Oudeh v. Prior-Oudeh, 2021 ONSC 3718 (CanLII) at 88-90

“Since Gordon, courts have increasingly recognized that any family violence or abuse may affect a child’s welfare and should be considered in relocation decisions: see Prokopchuk v. Borowski, 2010 ONSC 3833, 88 R.F.L. (6^th) 140; Lawless v. Lawless, 2003 ABQB 800, at para. 12 (CanLII); Cameron v. Cameron, 2003 MBQB 149, 41 R.F.L. (5^th) 30; Abbott-Ewen v. Ewen, 2010 ONSC 2121, 86 R.F.L. (6^th) 428; N.D.L. v. M.S.L., 2010 NSSC 68, 289 N.S.R. (2d) 8, at paras. 22-23 and 35; E.S.M. v. J.B.B., 2012 NSCA 80, 319 N.S.R. (2d) 232, at paras. 55-57. Courts have been significantly more likely to allow relocation applications where there was a finding of abuse: Department of Justice, A Study of Post-Separation/Divorce Parental Relocation (2014), at ch. 3.3.4.

The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497.

Domestic violence allegations are notoriously difficult to prove: P. G. Jaffe, C. V. Crooks and N. Bala, “A Framework for Addressing Allegations of Domestic Violence in Child Custody Disputes” (2009), 6 J. Child Custody 169, at p. 175; A. M. Bailey, “Prioritizing Child Safety as the Prime Best-Interest Factor” (2013), 47 Fam. L.Q. 35, at pp. 44-45. As the interveners West Coast LEAF Association and Rise Women’s Legal Centre point out, family violence often takes place behind closed doors and may lack corroborating evidence: see S. B. Boyd and R. Lindy, “Violence Against Women and the B.C. Family Law Act: Early Jurisprudence” (2016), 35 C.F.L.Q. 101, at p. 115. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support.

The prospect that such findings could be unnecessarily relitigated on appeal will only deter abuse survivors from coming forward. And as it stands, the evidence shows that most family violence goes unreported: L. C. Neilson, Responding to Domestic Violence in Family Law, Civil Protection & Child Protection Cases (2nd ed. 2020), 2017 CanLIIDocs 2 (online), at ch. 4.5.2.

The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis: s. 16(3)(j) and (4). The Divorce Act broadly defines family violence in s. 2(1) to include any violent or threatening conduct, ranging from physical abuse to psychological and financial abuse. Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child.

Because family violence may be a reason for the relocation and given the grave implications that any form of family violence poses for the positive development of children, this is an important factor in mobility cases.”

            Barendregt v. Grebliunas, 2022 SCC 22 (CanLII) at 142-147

“The jurisdiction to make a contempt order is found in r. 31 of the Family Law Rules, O. Reg 114/99.

In the recent decision of Moncur v. Plante, 2021 ONCA 462, at para. 10 the Court of Appeal for Ontario summarized the general principles applicable to civil contempt:

1. 1. 1. 1. 1. For a party to be found in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have had actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26..
            2. Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799 Ont. C.A. , 33 R.F.L. (8th) 19, at paras. 9–12; Valoris pour enfants et adultes de PreS.-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385Ont. C.A. , 25 R.F.L. (8th) 144, at paras. 18–19.
            3. When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo, at para. 19; Chong, at para. 11; and Valoris, at para. 41.

I agree with Justice Charney in Perna v. Foss 2015 ONSC 5636, when he stated: “notwithstanding the court’s reluctance to exercise its contempt powers, it is important that such power be exercised in appropriate cases to ensure that parties in family law proceedings understand that court orders cannot be ignored or disobeyed, and that compliance with a court order is neither an option nor a bargaining chip.”

Allegations of contempt cannot be “traded.”: see Weber v. Merritt, 2018 ONSC 7590, at paras. 30-39.

Once a court has determined that access is in the child’s best interests, a parent cannot leave the decision to comply with the access order up to the child. A parent has some positive obligation to ensure that a child who allegedly resists contact with the access parent complies with the access order: see Godard, at para. 28; Bors v. Bors, 2021 ONCA 513.”

            J.I. v. A.A., 2023 ONSC 2942 (CanLII) at 298-302

“Justice Pepall’s decision in Virc v. Blair is consistent with a substantial body of case law in Ontario, and in other provinces with similar legislation, holding that the strict requirements of s. 55(1) may be relaxed where the court is satisfied that the contract was in fact executed by the parties, where the terms are reasonable and where there was no oppression or unfairness in the circumstances surrounding the negotiation and execution of the contract: see Geropoulos v. Geropoulos (1982), 1982 CanLII 2020 (ON CA), 35 O.R. (2d) 763 (C.A.); Campbell v. Campbell; Hyldtoft v. Hyldtoft (1991), 1991 CanLII 12868 (ON SC), 33 R.F.L. (3d) 99 (Ont. Gen. Div.); Harris v. Harris (1996), 7 O.T.C. 265 (Gen. Div.); Pastoor v. Pastoor (2007), 2007 CanLII 28331 (ON SC), 48 R.F.L. (6th) 94 (Ont. S.C.); Robinson v. Robinson, 2006 BCSC 663; Waters v. Conrod, 2007 BCCA 230; Judson v. Judson (1995), 1995 CanLII 17988 (PE SCTD), 129 Nfld. & P.E.I.R. 302 (S.C.); Ngeruka v. Bruce, 2010 YKSC 51.”

            Gallacher v. Friesen, 2014 ONCA 399 (CanLII) at 27

“The right to bring or respond to a case does not grant either party a license to litigate without regard to the financial and other consequences of litigation.  Particularly in family court, litigants must be mindful that court proceedings are expensive, time-consuming, and stressful not only for parents but also for children and extended family. Sabo v. Sabo, [2013] O.J. No. 4628 (OCJ); DeSantis v. Hood, 2021 ONSC 5496 (SCJ); Forbes v. Forbes, 2022 ONSC 1787 (SCJ).”

            Churchill v. Elliot and Ward, 2024 ONSC 2757 (CanLII) at 6

“In Dhaliwal v Dhaliwal 2020 ONSC 3971 at paragraph 16, Justice Pazaratz, summarized the applicable legal principles as follows:

a.   Section 2 of the Partition Actempowers the court to order the sale of a jointly owned property, including a matrimonial home. McNeil v. McNeil2020 ONSC 1225 (SCJ).

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. Dayal2016 ONSC 3559 (SCJ); Marchese v. Marchese  2017 ONSC 6815 (SCJ); Jama v. Basdeo 2020 ONSC 2922 (SCJ); Davis v. Davis 1953 CanLII 148 (ON CA); Brienza v. Brienza 2014 ONSC 6942 (SCJ).

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 Doucett2020 ONSC 3386 (SCJ).

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

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).

f.   Generally, the party opposing the sale must show malicious, vexatious, or oppressive conduct relating to the partition and sale issuein order to avoid the sale. Silva v. Silva  (1990) 1990 CanLII 6718 (ON CA), 1 O.R. (3D) 436 (ON CA); Jama v. Basdeo; Steele v Doucett.

g.   Each case must be considered on its own facts.  The court must consider all relevant factors in exercising its discretion.  Davis v. Davis1953 CanLII 148 (ON CA), [1954] O.R. 23 (C.A.); Steele v Doucett.

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 CanLII 603 (ON CA), 2 O.R. (2d) 713 (ON CA).

i.   The Family Law Actdoes 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) 2002 CanLII 44960 (ON CA), 27 R.F.L. (5th) 358 (ON CA); Dulku v. Dulku 2016 CarswellOnt 16066 (SCJ).

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 Zarrabian2016 ONSC 2900 (SCJ); Giglio v Giglio 2015 ONSC 8039 (SCJ); Keyes v. Keyes 2015 ONSC 1660 (SCJ).

k.   More to the point, where it is evident at the temporary motion stage that monthly carrying costs are currentlyunsustainable, 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. Delongte2019 ONSC 6954 (SCJ); Kaing v. Shaw 2017 ONSC 3050 (SCJ).  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 Darrigo2018 ONSC 1039 (SCJ). 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 CanLII 34595 (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.   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. Martin1992 CanLII 7402 (ON CA).  Nor can it give either joint tenant a right of first refusal.   Dibattista v. Menecola 1990 CanLII 6888 (ON CA)..  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 (SCJ).

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?

I have considered the above principles in my analysis and am cognizant that courts must examine the individual facts in each case when considering the sale of the matrimonial home. Courts should carefully examine all the circumstances before deciding on the sale of the matrimonial home where there is no final determination, specifically those regarding financial issues and equalization payments.”

            J.T. v. R.F., 2024 ONSC 2745 (CanLII) at 25-26