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Family - Matrimonial Home. Szabo v. Szabo-Jukes
In (Div Court, 2024) the Divisional Court dismissed an appeal from a Partition Act partition of the matrimonial home "during the course of family law proceedings":[1] This is a judicial appeal from the January 16, 2023 order of the Honourable Justice Leibovich, ordering the sale of a property pursuant to s. 2 and 3 of the Partition Act.
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[8] Section 7 of the Partition Act grants this Court jurisdiction to hear this appeal. The standard of review for a judicial or statutory appeal is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235. On questions of law, the standard is correctness. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law with respect to the application of the correct legal principles to the evidence, such as the case at bar, the standard of review is palpable and overriding error.
[9] This standard of review was recently confirmed in Scanga v. Scanga, 2023 ONSC 3592, as the standard of a review on an order for the partition and sale of a home.
[10] In respect of the first issue raised on this appeal, there is considerable jurisprudence on the sale of property under the Partition Act during the course of family law proceedings. Justice Leibovich cites the principles for a request for partition and sale of the matrimonial home as set out by the Ontario Superior Court of Justice in Sanvictores v. Sanvictores, 2022 ONSC 2673. In Sanvictores the Court established that the Court must compel the partition and sale of a jointly held property, unless there is malicious, vexatious or oppressive conduct on the part of the moving party. Based on these principles, the request for partition was granted. In our view, the motions judge correctly cited and applied these principles. . Scheibler v. Scheibler [ownership]
In Scheibler v. Scheibler (Ont CA, 2024) the Court of Appeal considered ownership of the matrimonial home after separation:The Appellant’s Claim for Sole Ownership of the Matrimonial Home
[22] The trial judge dismissed the appellant’s claim for sole ownership of the matrimonial home, which was registered in the names of both parties, as joint tenants. The trial judge found that there was no evidence concerning the intentions of the parties at the time that title to the property was registered in their joint names apart from conflicting evidence concerning their contributions to the initial downpayment. In the result, the trial judge concluded that the appellant failed to rebut the presumption of joint tenancy that arises under s. 14(a) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) when spouses hold real property as joint tenants.
[23] The appellant submits that the trial judge misapprehended the evidence concerning the parties’ intentions, as she gave evidence that the property was registered in their joint names based on the respondent’s agreement to pay his share of the down payment and mortgage payments, which he did not do. She contends that the trial judge further erred by failing to resolve the conflict in the evidence concerning the parties’ respective contributions to the down payment and by failing to find a resulting trust in her favour, as she had made all the payments for the purchase of the matrimonial home.
[24] We do not accept these submissions. Based on our review of the record, the appellant’s evidence did not rise to the level of asserting that the parties had agreed that the matrimonial home would be registered in their names as joint tenants conditional on the respondent contributing to the payments[1]. In the absence of direct evidence of the mutual intentions of the parties, it was open to the trial judge to rely, as he at least implicitly did, on the inferences to be drawn from the actions of the parties. In particular, he noted that while the appellant had purchased another property in 2012 and placed it in her own name, the property comprising the matrimonial home was acquired through purchases two-and-a-half years apart in 2000 and 2003. On both occasions the properties were registered in both parties’ names, as joint tenants.
[25] In the circumstances, we see no error in the trial judge’s finding that the appellant failed to rebut the presumption of joint tenancy that arises under s. 14(a) of the FLA. It was therefore unnecessary that he resolve the conflict in the evidence concerning the parties’ respective contributions to the purchase price of the matrimonial home. . Scheibler v. Scheibler [occupation rent]
In Scheibler v. Scheibler (Ont CA, 2024) the Court of Appeal considered an 'occupation rent' issue:Occupancy Rent/Reimbursement for Expenses in relation to the Matrimonial Home
[19] The appellant argues that the trial judge erred in failing to order that the respondent pay occupation rent for his exclusive occupation of the matrimonial home post separation and/or in failing to order that he reimburse the appellant for expenses relating to the matrimonial that she paid post separation. She submits, in particular, that this was a case warranting such an order because the respondent was operating a business, the wildlife sanctuary, from the matrimonial home property.
[20] We do not accept these submissions. The trial judge reviewed the principles applicable to the equitable remedy of requiring payment of occupation rent in circumstances where one joint owner of property occupies the property to the exclusion of another. He exercised his discretion not to award occupation rent for three reasons. First, he had ordered that the respondent reimburse the appellant for one half of the post-separation expenses the appellant paid in relation to the matrimonial home. Second, although he had accepted that the respondent was financially dependent on the appellant and entitled to retroactive non-compensatory transitional spousal support, he declined to award such support at the high end of the Spousal Support Advisory Guidelines’ range as had been requested. Third, he accepted that the respondent had been responsible for repairs and maintenance to the matrimonial home following separation, which would accrue to the benefit of both spouses.
[21] We see no error in the trial judge's exercise of discretion. No doubt, the trial judge was faced with an unusual set of circumstances. The parties had no children of their marriage and no children of any prior marriages residing with them during cohabitation. The appellant was the primary income earner during the marriage and acquiesced in the respondent’s failure to seek remunerative employment, both before and after separation. The appellant left the respondent in possession of the matrimonial home upon separation and continued to pay the expenses relating to the matrimonial home. Both parties were dilatory in seeking any remedy through legal action. The appellant did not even advance a claim for occupation rent or reimbursement of expenses she paid in relation to the matrimonial home until she amended her answer in 2021. The trial judge was entitled to exercise his discretion in balancing the parties’ competing claims for spousal support, occupancy rent and reimbursement of expenses. The fact that the respondent was continuing his limited revenue producing operation of the wildlife sanctuary post separation was not determinative. The appellant took no steps to dislocate him prior to trial. Absent any demonstrated error on the part of the trial judge, it is not open to us to interfere with his exercise of discretion.
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