



COURT OF APPEAL FOR ONTARIO

CITATION: Punit v. Punit, 2014
    ONCA 252

DATE: 20140402

DOCKET: C57327

Juriansz, Pepall and van Rensburg JJ.A.

(sitting as Divisional Court)

BETWEEN

Hemwattie Sandy Punit

Applicant (Appellant in Appeal)

and

Raj Komar Punit

Respondent (Respondent in Appeal)

Steven Bookman and Chris Stankiewicz, for the appellant

Peter Cozzi, for the respondent

Heard: March 7, 2014

On appeal from the order of Justice
Kevin
    W. Whitaker
of the Superior Court of Justice, dated June 18, 2013.

Juriansz J.A.:

A.

Introduction

[1]

The appellant has filed an appeal to the Court of Appeal from an order
    for the sale of the parties matrimonial home pursuant to s. 2 of the
Partition
    Act
, R.S.O. 1990, c. P.4. The order was made on an interlocutory motion in
    a matrimonial proceeding. The appeal raises the question of whether the motions
    judge erred in ordering the sale of the matrimonial home before trial without
    considering whether the sale would prejudice the appellants rights under the
Family
    Law Act
, R.S.O. 1990, c. F.3. However, given that s. 7 of the
Partition
    Act
provides that an appeal lies to the Divisional Court from any order
    made under the
Partition Act
, the Court of Appeals jurisdiction was
    the first issue at the hearing of this appeal. As explained below, the panel
    determined that the Court of Appeal did not have jurisdiction, and in the
    exceptional circumstances of this case it is appropriate to decide the appeal
    sitting as a panel of the Divisional Court, with the designation of the Chief
    Justice of the Superior Court of Justice.

[2]

The appellant commenced a family law proceeding against the respondent
    in December 2011. She claimed, among other things, interim and permanent
    exclusive possession of the matrimonial home, an unequal division of net family
    property, and ongoing and retroactive child and spousal support.

[3]

On December 29, 2011, Czutrin J. made a temporary order granting the
    appellant and the child exclusive possession of the matrimonial home.

[4]

By motion heard on June 18, 2013, the respondent sought an order for the
    sale of the matrimonial home. By cross-motion, the appellant sought an order
    permitting her to purchase the respondents interest in the home, and in the
    alternative, an order that his motion for the sale be adjourned to the trial of
    this matter.

[5]

At the outset of the motion, the motions judge granted the respondent
    leave to amend his Answer to plead the
Partition Act
. His entire reasons
    for granting the sale order are as follows:

The Applicant Mother seeks an Order permitting her to purchase
    the home and opposes the motion to sell under the
Partition Act
. The
    Father is in need of funds [
sic
] his assets are frozen and his only
    equity is in the house. There is no reason to find or conclude here that the
    father is acting maliciously or in circumstances of oppression or with
    vexatious intent. Accordingly, the matrimonial home is to be sold pursuant to
    section 2 of the
Partition Act
.

[6]

He addressed certain interim matters but ordered that all other issues
    were to be left to trial.

[7]

On August 23, 2013, the appellant obtained an order from the Court of
    Appeal staying the sale order pending appeal. Although the respondent raised
    the issue of jurisdiction on the motion to stay, Blair J.A. declined to make a
    final determination on jurisdiction given that the Court of Appeal had
    previously heard appeals from orders under the
Partition Act
, in spite
    of s. 7, in cases where the primary proceedings fell under the
Family Law
    Act.


B.

Jurisdiction

[8]

The respondent takes the position that the Court of Appeal lacks
    jurisdiction to entertain the appeal. Section 7 of the
Partition Act
provides that An appeal lies to the Divisional Court from any order made under
    this Act.

[9]

In response to the obvious jurisdictional problem, the appellant pointed
    to other cases where the Court of Appeal has heard an appeal from a final order
    of the Superior Court of Justice for the sale of a matrimonial home.

[10]

However,
    none of the cases cited provides authority for the Court of Appeal to assume
    jurisdiction in this appeal.

[11]

In
    several of the cases relied on by the appellant, the appeal from one or more
    parts of the order lay to the Court of Appeal, while the appeal from another
    part of the order lay to the Divisional Court. In these cases, the Court of
    Appeal had jurisdiction pursuant to s. 6(2) of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43. Section 6(2) provides that the Court of Appeal has
    jurisdiction to hear and determine an appeal that lies to the Divisional Court
    or the Superior Court of Justice if an appeal in the same proceeding lies to
    and is taken to the Court of Appeal. See
Buttar v. Buttar
, 2013 ONCA
    517 and
Slaughter v. Slaughter
, 2013 ONCA 432. See also
Barker v.
    Barker
, 2011 ONCA 447, where the application judge dismissed an
    application for partition and sale of a matrimonial home under the
Partition
    Act
, but ordered the husband to transfer his 50 percent interest in the
    property to the wife on specified terms. In the present case, the only matter
    under appeal is the order for sale under the
Partition Act
.

[12]

At
    least one of the other cases cited was first appealed to the Divisional Court,
    and then to the Court of Appeal: See
Martin v. Martin
(1992), 8 O.R.
    (3d) 41 (C.A.)

[13]

In
    the remaining cases, the court did not address its jurisdiction in light of s.
    7 and the question seems not to have been raised. Three of these,
Ames v.
    Bond
(1992), 39 R.F.L. (3d) 375 (Ont. C.A.);
Laurignano v. Laurignano
,
    2009 ONCA 241; and
Binkley v. Binkley
(1988), 14 R.F.L. (3d) 336 (Ont.
    C.A.) are brief oral endorsements. In
Laurignano
and
Binkley
there is so little detail, it is even unclear whether the motions judges had
    made the original orders for sale under the
Partition Act
. In
Silva
    v. Silva
(1990), 1 O.R. (3d) 436 (C.A.), the court did entertain an appeal
    from an order under the
Partition Act
but the issue of the courts
    jurisdiction seems not to have been raised and the court did not address it.

[14]

The
    issue of jurisdiction has been raised in this case and the parties made
    extensive submissions regarding it.

[15]

Counsel
    for the appellant could point to no case in which the Court of Appeal has
    concluded an order made under the
Partition Act
may be appealed
    directly to the Court of Appeal.

[16]

In
    the alternative, counsel for the appellant submits the motions judge acted
    without jurisdiction in making the order in this case and an appeal lies to the
    Court of Appeal to correct his jurisdictional error. He points out that, in
Silva,
the Court of Appeal stated that an application under the
Partition Act
should not proceed where it can be shown that it would prejudice the rights of
    either spouse under the
Family Law Act
. He submits that the reasons of
    the motions judge show he gave no consideration to the outstanding matrimonial
    issues and whether the appellants rights would be prejudiced by an order for
    sale. Hence, he submits, the motions judge had no jurisdiction to make the
    order that he did. An appeal lies to the Court of Appeal, he submits, to correct
    a judge of the Superior Court who has acted without jurisdiction.

[17]

We
    do not accept this argument. The Court of Appeal made clear in
Silva
that
    the
Family Law Act
does not oust the courts jurisdiction under the
Partition
    Act
. In fact, in
Silva
, the court upheld a pre-trial order for
    partition and sale under the
Partition Act
. The motions judge did not
    act without jurisdiction.

[18]

The
    sale order expressly states that it is pursuant to the
Partition Act
. This
    is the only provision of the order from which the appellant appeals. We
    conclude that an appeal from the order of the motions judge lies to the
    Divisional Court pursuant to s. 7 of the
Partition Act
. This appeal
    was brought to the wrong court. Ordinarily, we would order it transferred to
    the Divisional Court under s. 110 (1) of the
Courts of Justice Act
.
    However, the exceptional circumstance in this case is that the trial of the
    matrimonial proceeding is scheduled for April 21, 2014. In these special
    circumstances, the Chief Justice of the Superior Court of Justice has agreed to
    designate us as a panel of the Divisional Court to hear and determine this
    appeal.

C.

The merits

[19]

The
    appellant submits that the motions judge erred in law by ordering the sale of
    the matrimonial home before trial without considering how such an order would
    prejudice the appellants family law claims. In effect, the appellant submits
    that the motions judge applied the ordinary civil standard for the partition
    and sale of jointly held property rather than the family law standard for the
    sale of a matrimonial home before trial. If the motions judge did consider the
    family law issues, the appellant submits that the reasons of the motions judge
    are inadequate to permit appellate review. Finally, the appellant submits the
    motions judge committed overriding and palpable errors by misapprehending the
    evidentiary record and by accepting the respondents claim that he was in need
    of immediate funds.

[20]

The
    respondent accepts that before making a pre-trial order for the sale of a
    matrimonial home under the
Partition Act
in a family law proceeding,
    the court should consider whether or not granting the order would cause undue
    prejudice to either partys reasonably claimed substantive rights. While the
    motions judges reasons are brief, a judge is presumed to know the law and the
    judge should be presumed to have applied this principle. The respondent submits
    it is obvious that the motions judge resolved the factual issues in favour of
    the respondent. The motions judge had before him affidavits, factums and
    financial statements of the parties. His comment that the respondent was in
    need of funds shows that he rejected the appellants position that he had
    income and equity in commercial property he could draw upon. According to the
    respondent, the record before the motions judge established that the appellant
    was not working and could not maintain the home, which was in need of repairs.
    Only one teenage child would be disrupted by the sale. The respondent submitted
    that the motions judge must have been persuaded that the likely outcome at
    trial would be that the appellant would not be able to purchase the
    respondents share of the home.

D.

Analysis

[21]

The
    motions judge did not explicitly address the likelihood that the sale would
    prejudice the rights of the appellant under the
Family Law Act
nor did
    he indicate how he resolved the parties' conflicting positions as to whether
    the respondent had made proper financial disclosure.

[22]

From
    a practical perspective, the trial in these proceedings is scheduled to begin
    on April 21, 2014. Since the motion was heard, the respondent has been able to
    live without any funds from the sale of the home. The appellant has been able
    to live in the home and the ongoing expenses associated with the home have been
    met. Even if the order for partition and sale were upheld by this court, it is
    unlikely the house would be sold before trial. If the house were sold, rule
    66.03 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 would require
    that the monies be paid into court. The respondent would not be able to receive
    any funds before trial.

[23]

For
    these reasons, I would allow the appeal, set aside the sale order, and allow
    this and any other remaining issues between the parties to proceed to trial. The
    respondent has been successful on the question of jurisdiction and the
    appellant on the merits. I would fix the costs of the appeal in favour of the
    appellant in the amount of $7,500.00.

Released: April 2, 2014

(RGJ)                                                                           
    R.G. Juriansz J.A.

I agree S.E. Pepall J.A.

I agree K. van Rensburg J.A.


