



COURT OF APPEAL FOR ONTARIO

CITATION: Barry v. Barry, 2020 ONCA 321

DATE: 20200527

DOCKET: C67550

Feldman, Lauwers and Huscroft
    JJ.A.

BETWEEN

Susan Barry

Applicant (Appellant)

and

Marc
    Andrew Barry
and James Michael Barry

Respondents (
Respondent
)

Michael H. Murray, for the appellant

Marc Andrew Barry, acting in person

Heard: In writing

On appeal from the order of Justice Timothy
    G. Price of the Superior Court of Justice, dated September 11, 2019.

REASONS FOR DECISION

[1]

Following a four-day trial to resolve financial issues arising from
    marital breakdown, the trial judge ordered that the respondent owed the
    appellant an equalization payment of $226,670.96. The order also provided that,
    after a fair market value assessment, the respondent had the right to conclude
    the purchase of the appellants interest in the jointly-owned matrimonial home
    within 30 days of the date of the release of the trial judges reasons, and to
    obtain the release of the appellant from her obligations under the existing
    first mortgage registered against the matrimonial home.

[2]

The appellant seeks to vary the trial judges order to omit the
    respondents right to conclude the purchase of the matrimonial home. She seeks
    the sale of the matrimonial home and division of its net proceeds.

[3]

The respondent initially informed the court that he would not be
    participating in the appeal. In a letter to the court, he stated that the
    appeal belonged in the Divisional Court, and asserted that he was not properly
    the respondent and that it was incumbent on the trial judge to explain his
    order. Just prior to the date scheduled for consideration of this appeal, the
    respondent filed a factum and reiterated these positions, and in addition took
    issue with the conduct of the appellant and her counsel throughout the
    proceedings. He stated that he had been required to live in a trailer as the
    matrimonial home sat vacant while the appellant lived with her mother, and
    sought compensation for his expenses and hardship.

[4]

Having considered the positions of the parties, we allow the appeal for
    these reasons.

[5]

First, the appeal is properly heard in this court rather than the
    Divisional Court. This court has jurisdiction to hear this appeal pursuant to
    s.6(1)(b) of the
Courts of Justice Act
, R.S.O.
    1990, c. C.43 (
CJA
) as an appeal from a final
    order of a judge of the Superior Court.
[1]


[6]

Second, the trial judges order speaks for itself. Trial judges do not
    defend their decisions on appeal. The respondent is entitled to defend the
    trial judges order. In any event, the appellant bears the burden of
    establishing that the trial judges decision should be varied on appeal.

[7]

This case raises a single issue: the arrangements for selling the
    matrimonial home. The appellant wanted to sell the home and divide the net
    proceeds of the sale, while the respondent wanted to purchase the appellants
    interest in it. The current value of the home was not established at trial. The
    trial judge granted the respondent the right to purchase the matrimonial home
    within 30 days from the release of his decision after obtaining a fair market
    value assessment.

[8]

The appellant submits that the trial judge erred in making this order.
    We agree.

[9]

As this court explained in
Martin v. Martin
, [1992] 8 O.R. (3d) 41 (C.A.), a right of first refusal is a
    substantive right that has economic value. It falls outside the boundaries of
    what is ancillary or what is reasonably necessary to implement the order for
    sale of the matrimonial home. It distorts the market for the sale of the
    matrimonial home by eliminating the need to compete against any other
    prospective purchaser, thus potentially reducing the amount the joint owning
    spouse realizes on the sale. In the absence of consent, the right of first
    refusal should not have been granted in this case. If the respondent seeks to
    purchase the matrimonial home, he must compete with any other interested
    purchaser.

[10]

Accordingly, the appeal is allowed.

[11]

Section 3 of the order is vacated. Section 4 of
    the order is replaced with the following provision: The matrimonial home shall
    be listed for sale immediately.

[12]

The appellant is entitled to costs on the appeal
    fixed at $7,500, inclusive of taxes and disbursements.

K. Feldman J.A.

P. Lauwers J.A.

Grant Huscroft
    J.A.





[1]
Part I of the
Family Law Act
, R.S.O. 1990, c. F.3, which
    deals with equalization of net family properties, does not have an appeal
    provision captured by the deeming provision in s. 21.9.1 of the
CJA,
which
directs
    certain final appeals from decisions of the Family Court to the Divisional
    Court.


