Forcing the Sale of the Family Home Before Trial? Easier said than done

Apart from children’s issues, one of the most contentious issues in family litigation is figuring out what to do with the family home. Someone has to move out, and debt and equity must be dealt with. Family litigants are often, quite understandably, eager to move on with life. Family lawyers are thus often asked about forcing the sale of the family home before trial.

The Ontario Superior Court of Justice just delivered a new decision on this issue in Mitchell v. Leach et al, 2015 ONSC 6041.

Husband and wife were both of advanced age. Husband purchased the home decades prior to marriage. The parties married, wife moved in, and moved her disabled daughter into the basement suite at heavily discounted rent. There were two marriage contracts; one would affirm wife had no interest in the home, the other granted her an interest and made her a joint tenant. The validity of both contracts was seriously disputed and required trial.

Husband moved for an order for a forced sale under the Partition Act. His motion was dismissed.

The Court’s analysis teaches Ontario family lawyers how to handle forced sale motions.

First, section 2 of the Partition Act provides that all joint tenants, tenants in common, etc may be compelled to make or suffer partition or sale of land regardless of whether the estate is legal and equitable, or equitable only.

Second, case law reins in section 2:

Silva v. Silva (1990) CanLII 5400 (BCCA)

  • A joint tenant has a prima facie right to partition and sale.
  • But, “an application under section 2 should not proceed where it can be shown that it would prejudice the rights of either spouse under the Family Law Act”.

Davis v. Davis 1953 CarswellOnt 108

  • “there is a prima facie right, which will not be denied unless there has been vexatiousness or oppressiveness, and that it is the conduct of the applicant for partition that must be considered in this connection”.

Greenbanktree Power Corporation v. Coinamatic Canada Inc 2004 CarswellOnt 5407

  • Oppressiveness includes hardship.
  • Partition and sale can be refused because hardship would be of such a nature as to amount to oppression.

Garfella Apartments Inc. v. Chouduri 2010 ONSC 3413

  • The party alleging oppression has the onus to prove it on a balance of probabilities.
  • Partition and sale can be refused in circumstances of malice, oppression, and vexatious intent.

In Davis, the sale caused inconvenience and financial difficulty, but not oppression. There was no vexatious intent. An order for partition and sale was made.

In Klakow v. Klakow 1972 CarswellOnt 150, an order for sale was not made because the party resisting the sale was blind, unemployable, and had nowhere else to live. This hardship amounted to oppression.

In Mitchell v. Leach, partition and sale was refused because of the uncertainty surrounding the marriage contracts. If wife was, in fact, a joint tenant, she could leverage her equity in the home to buy husband’s interest, thereby allowing her, and her disabled daughter, to remain in the home.

The take away point is that orders for sale and partition are not lightly granted and Ontario family lawyers must assess the situation very carefully before bringing the motion.

Jeffrey L. Hartman

Actions and Consequences in Family Court

Legally disentangling a family is an inherently emotional process. Tempers flare, tears flow, and we do things we ordinarily would not do. But actions have consequences and, in family litigation, sometimes we have to atone for those actions in front of a judge.

Husband learned this lesson the hard way in the recent Supreme Court of BC decision, H.S. v. R.S., 2015 BCSC 1856. As a Canadian citizen, Husband sponsored his Pakistani Wife’s application for Canadian citizenship. Wife became pregnant. Their relationship soured and they separated. Husband immediately –i.e. the same day as separation – withdrew sponsorship of his pregnant Wife.

Wife faced a deportation order. She challenged it, arguing that her life was in danger in Pakistan. Husband argued there was no danger. Immigration officials agreed with Husband and upheld the deportation order.

Wife applied to family court seeking a variety of relief, including custody of the 13 month old child and a relocation order permitting her to take the child to Pakistan. The orders were granted.

The lesson here is that actions have consequences. In retrospect, Husband probably regrets withdrawing sponsorship of Wife on the same day as separation. Often, especially in family litigation, it is wise to take a deep breath and very carefully consider the pros and cons of a course of action. Had Husband done that and decided not to withdraw his sponsorship, perhaps the child would remain in Canada.

Jeffrey L. Hartman 

How to Handle Allegations of Sexual Abuse Against a Child in Ontario Family Court

Allegations of sexual abuse against a child have a way of arising in the midst of custody and access litigation in Ontario. Sometimes those allegations are well founded. Other times they are tactical maneuvers to minimize the other parent’s role. This article teaches Ontario family lawyers how to handle such allegations in light of the recent Superior Court of Justice decision Daya v. Daya, 2015 ONSC 6240 (CanLII).

In Daya, Father sought access to the three and a half year old daughter. Mother resisted, alleging he sexually abused Daughter. She made the same allegation at least twice prior. Police and Children’s Aid Society investigations found no evidence of abuse. Mother independently retained a child therapist without notice to Father. The therapist did not inquire into the parties’ history of family conflict. Mother was present at the sessions and, on several occasions, told the therapist what Daughter “meant” to say. The Office of the Children’s Lawyer recommended sole custody to Mother and access to Father.

Justice Jarvis leaned on Bates v. Bates, 2011 ONSC 3027 (CanLII) for the analytical foundation to allegations of sexual abuse against a child. There are three approaches:

  • Balance of Probabilities: this approach is binary because it generates the conclusion that the child was or was not abused. The problem, then, is that a finding of no sexual abuse might be made despite a significant risk that the abuse did occur. Consequently, this standard does not help the court determine the degree of risk of harm and the best interests of the child.
  • Real or Substantial Risk of Harm: the court must determine whether there is a real or substantial risk of harm. The problem with this approach is that the words “real or substantial” establish a threshold and thereby distract from the task of assessing the risk of harm and determining the best interests of the child.
  • Risk of Harm: this approach flows from Young v. Young, 1993 CanLII 34 (SCC). Based on all the evidence, the court must ascertain the existence and extent of any risk of harm. The risk must be plotted on a continuum from no risk to certainty that risk will materialize. When there is any possibility of materialization, the court must consider the degree of potential harm. Where the risk falls on the continuum determines the amount of weight attributed to the risk. The risk then becomes one of many factors in determining the child’s best interests.

Justice Jarvis applied the Risk of Harm Analysis, finding that there was no risk of harm and that Mother simply does not accept the findings of the numerous agencies she involved.

Ontario family lawyers know that allegations of sexual abuse against a child arise all too frequently in family court. It is sad when the allegations are tactical and sadder when they are true. Whatever the situation, Daya teaches us how to handle these allegations.

Jeffrey L. Hartman

Communicating Effectively in High Conflict Family Litigation

Communicating effectively in high conflict parenting cases is a major issue in family litigation. Often, the child’s best interest takes a backseat to animosity between the parents. The Supreme Court of British Columbia recently addressed the issue in K.R.Y. v. P.J.P.T., 2015 BCSC 1903, a judgment providing good food for thought for family lawyers everywhere.

A section 211 report by Dr. England was tendered. In it, she cites the following excerpt of Justice Joyce in A.C.V. v. S.J.R., 2011 BCSC 1279:

“Texting is a modern means of communication that is great in many situations but not, in my view, in a situation such as this. It is too fast. It does not encourage calm reflection. A person can too easily make hurtful and unhelpful comments from a distance. In my view, email communication, while not as good as calm, courteous personal discourse, is the preferred option. It should be limited to matters concerning J.R. upon which it is truly necessary or helpful to communicate. I encourage the parents to compose when they are calm, always to re-read what they have written and, before hitting the send button, ask this question: Do I want this message being read in Court?”

Dr. England further recommended that parents communicate the bare minimum amount of information in order to minimize the potential for conflict.

Family lawyers everywhere should bear these tips in mind when advising clients in high conflict family cases.

Jeffrey L. Hartman 

Ontario Family Lawyers Rejoice – online filing may be coming soon

Ontario is the most densely populated province in Canada and one imagines its court system is as well. Quite surprisingly, Ontario legal procedure is rather antiquated in some regards. The inability to submit court documents for filing online causes great frustration to many lawyers. Under the status quo, most lawyers hire process servers to take a physical document to the court registry for filing. But those days may be coming to an end.

On perusing Queen’s Park Hansard for October 22, 2015, one sees mention of Bill 85, Strengthening and Improving Government Act. Bill 85 affects 15 statutes, one of which being the Provincial Offences Act, which may be amended as follows:

Electronic court documents

76.1  (1)  A document that is required or authorized to be filed, given or delivered to a court office or the clerk of the court under this Act may, in accordance with the regulations, be filed, given or delivered electronically.

Electronic signature

(2)  An electronic document that is filed, given or delivered to a court office or the clerk of the court may be signed electronically in accordance with the regulations.

Bill 85 deals with provincial offences and not family law, but it is a step in the right direction for the family law system. Assuming a nominal filing fee, as is common in other jurisdictions, electronic filing is poised to put a few hundred dollars back in clients’ pockets because it reduces the role of the process server. This shift will undoubtedly hurt process servers, but online filing seems long overdue in Ontario. Only time will tell whether it becomes a reality.

Jeffrey L. Hartman

Determining Income for Child Support in Ontario

Generally, the parent who spends less time caring for the children has an obligation to pay child support to the parent who spends more time caring for the children. The quantum of support is determined based on annual income. In some cases, calculating annual income is a tricky task and the Court is called upon to impute income, i.e. make a well-reasoned guess as to what the payor actually earns or is capable of earning.

The Ontario Superior Court of Justice dealt with this very matter in the recent case of Siddiqui v. Siddiqui, 2015 ONSC 6544. Mom sought an order imputing dad’s income at $50,000.00, resulting in a monthly child support payment of $743. Dad argued his income should not be imputed and his obligation should remain $232.

In its analysis, the Court opined that there is reluctance to impute income on an interim basis without sufficient evidence and where credibility is in issue. The Court lacked sufficient evidence to impute dad’s income at $50,000.00 but, on looking at his qualifications, found no explanation as to why he cannot earn more than $16,000.00 and change. In the Court’s view, it was reasonable to expect dad to earn at least $20,000.00, resulting in a monthly obligation of $306.

The key for family lawyers is not to be afraid to ask the court to impute income when it looks like the payor is capable of earning more.

Jeffrey L. Hartman 

Evidence on Interim Motions in Ontario

Effective family litigators know that one of the many keys to courtroom success is managing evidence within scarce time constraints. The fresh Ontario Superior Court of Justice decision Hutton v. Hutton, 2015 ONSC 6698 teaches Ontario family lawyers how to do so on interim motions.

In Hutton, the Hon. Justice Ray reminds:

“It is not proper to conduct in depth examination of the evidence on an interim motion … While I recognize that interim awards are often used as the basis of a final resolution, it is unfair for a motions judge who is limited to the submissions of counsel and unchallenged affidavit evidence to be expected to be as thorough as a trial judge who has the benefit of vive voce evidence, and considerably more time. That said, it is important that a motions judge make as fair an order as possible on the materials … It is after all an interim order intended to do justice to the parties pending trial or final resolution.”

Great wisdom inheres in Justice Ray’s assertion. On interim motions, affidavit evidence should be clear, concise, complete, and compelling. While the legal argument should be incisive and strong, concessions should be made where appropriate and weaker arguments should be shelved for trial if not abandoned. Time should be budgeted carefully and submissions should be rehearsed in aid of efficiency. Ontario family lawyers should bear these principles in mind when preparing for interim motions.

Jeffrey L. Hartman