Miller v. Miller, 1999

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C20277

COURT OF APPEAL FOR ONTARIO

FINLAYSON, AUSTIN and LASKIN JJ.A.

B E T W E E N : )

)

)

KIM MILLER ) Clifford S. Nelson

) for the appellant

Plaintiff )

Respondent )

)

- and - ) Malcolm C. Kronby, Q.C.

) for the respondent

)

WALTER ERNEST MILLER )

)

Defendant ) Heard: February 20, 21, 1996

Appellant )

)

)

FINLAYSON J.A.:

This is an appeal by the defendant Walter Ernest Miller from the judgment of the Honourable Mr. Justice Walsh dated November 22, 1994 wherein the trial judge, inter alia, awarded the respondent Kim Miller spousal and child support. The judgment under appeal is detailed but the only issue taken with it in this court is with respect to paragraphs 17 and 18 which read as follows:

17. THIS COURT ORDERS AND ADJUDGES, that in the event of the Defendant's default of his child or spousal support obligations under this Judgment for a period of five days, on the sixth day thereafter an order without notice may issue on an affidavit supported by a letter from the Family Support Plan, granting the Plaintiff exclusive possession of the former matrimonial home located at 17 Skyridge Court, Gormley, Ontario, and its contents. The Plaintiff shall prior thereto inform Clifford Nelson, the solicitor for the Defendant or other solicitor as Clifford Nelson may designate in writing, of the Defendant's said default of payment of support and of ex parte application.

18. THIS COURT ORDERS AND DIRECTS the Sheriff of the Judicial District of York Region and the York Regional Police Services to assist the Plaintiff if necessary, in enforcing any order granting her exclusive possession of 17 Skyridge Court, Gormley, Ontario and its contents.

The following facts are not in dispute. The parties married on November 8, 1980. There are four children of the marriage ranging in age from 14 to 4. The parties separated on May 20, 1993. Shortly after separation, the respondent and children left the matrimonial home and presently are living in another house that is rented. The rental cost of the respondent's residence is included in her budget and in the support payments awarded by the trial judge. The matrimonial home at 17 Skyridge Court is owned by the parties as tenants in common but there is no equity in it. The appellant conducts business from the matrimonial home. The parties were divorced on July 1, 1994, before the trial leading to the judgment under appeal.

The respondent had initially claimed interim and permanent exclusive possession of the matrimonial home as well as an unequal division of all net family property including the matrimonial home under The Family Law Act, R.S.O. 1990, c.F.3, am. 1993, c.27 ("FLA"). However these issues were either settled between the parties or abandoned by the respondent and were not dealt with by the trial judge.

On the findings of the trial judge, which are not disputed in this court, the appellant appears to have considerable if indeterminable sources of income. Walsh J. said as follows:

The husband is a promoter who asserts he has been borrowing money from various overseas investors for years. These investors, it appears, entrust their money to him for investment in various projects he organizes and promotes. His current one being a computer security device. He advised that he is to receive 10 percent of the profits generated from these investments and prospects. Most of the funds he receives, it appears, are channeled to him through the Cayman Islands. From the documents filed and the evidence given, it would seem that vast sums of money pass through his hands in various ways. While his recent income tax returns show an income of only $30,000. per annum, I am satisfied and find as a fact that he has available to him and can pay whatever sum I fix or require that he pay for spousal and child support.

ISSUE

Does the court have jurisdiction to make an order for exclusive possession of the matrimonial home when the parties are no longer in a spousal relationship?

The appellant submits that the court's jurisdiction to award exclusive possession of the matrimonial home is found in the FLA and is limited to spouses. Once a divorce takes place the court no longer maintains its jurisdiction to make an award of exclusive possession of the former matrimonial home and/or its contents. Additionally, counsel for the appellant took issue in this court with the unilateral procedures authorized by Walsh J. in enlisting the assistance of the Sheriff, but in view of the disposition that I propose, it is not necessary for me to deal with this argument.

The respondent submits that s.33(1) empowers the court to order a "person" to provide support for his or her dependents. Section 34(1)(d) provides that in an application under s.33, the court may make a final or interim order respecting any matter relating to the matrimonial home authorized under s.24(1)(a),(b),(c),(d) or (e). Counsel for the respondent submits that the jurisdiction to award support payments is inextricably bound up with the jurisdiction to determine possession of the matrimonial home. He further submits that the sanction for non compliance with support obligations structured by Walsh J. was necessary and appropriate having regard to the appellant's unsatisfactory payment record in the case in appeal.

The relevant sections of the FLA are as follows:

1.(1) In this Act,

. . .

" spouse"

"spouse" means either of a man and woman who,

(a) are married to each other, or

(b) have together entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under this Act.

Possession of matrimonial home

19.(1) Both spouses have an equal right to possession of a matrimonial home.

(2) When only one of the spouses has an interest in a matrimonial home, the other spouse's right of possession,

(a) is personal as against the first spouse; and

(b) ends when they cease to be spouses, unless a separation agreement or court order provides otherwise.

Order for possession of matrimonial home

24.(1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse's right of possession), the court may on application, by order,

(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;

(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;

Determination of questions of title between spouses

10.(1) A person may apply to the court for the determination of a question between that person and his or her spouse or former spouse as to the ownership or right to possession of particular property, other than a question arising out of an equalization of net family properties under section 5, and the court may,

(a) declare the ownership or right to possession;

Equalization of net family properties

5.(1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.

Application to court

7.(1) The court may, on the application of a spouse, former spouse or deceased spouse's personal representative, determine any matter respecting the spouse's entitlement under section 5.

Analysis

I think it is apparent from a reading of the above sections that the FLA has by s.19 conferred a spousal right to possession of the matrimonial home apart from any property interest. However, the right is a personal one and is retained only during the spousal relationship unless preserved by a separation agreement or a court order. Under s.19(2)(b), such an order must be made before the spousal relationship is terminated. Section 19(1) states that both parties have an equal right to possession, but this right, or any right to possession arising from a property interest, can be eliminated or adjusted by the court in an application under s.24(1)(b) or (c). This jurisdiction under s.24 is exercised separate and apart from the powers of the court under Part l dealing with equalization of net family properties.

Accordingly, while the spousal relationship subsists, both spouses have an equal right to possession of the matrimonial home under s.19 of the FLA, but it is a personal right between spouses and expires when they cease to be spouses unless a separation agreement or court order provides otherwise. This section has no application to the case on appeal because the parties had and continue to have an equal right to possession by virtue of their ownership of the matrimonial home as tenants in common. It is conceded that if the parties were still in a spousal relationship, either party wishing to interfere with the right of possession of the other, could make an application under s.24(1)(b) of the FLA and ask for exclusive possession. This section states that this right is present regardless of ownership or the right of possession contained in s.19. However, in my opinion, s.24 is only available to a spouse as defined in s.1(1) of the FLA.

While it is true that s.10(1)(a) permits a person to apply to the court for the determination of ownership or right of possession between that person and his or her spouse or former spouse, it is apparent that this section is procedural and the declaratory relief authorized by s.10(1)(a) must find a substantive basis elsewhere: see Martin v. Martin reflex, (1992), 38 R.F.L. (3d) 217 at 225 (Ont. C.A.). The applicant's right to possession must flow from ownership, from s.19, or following an application under s.24(1)(b). In the case of s.19, the right ends with the cessation of the spousal relationship, failing either a separation agreement or a court order. In the case of s.24(1)(b), an application for exclusive possession is available only to a spouse, not a former spouse.

Martin v. Martin, supra, was an interlocutory application for the sale of the matrimonial home. The home was owned jointly by the two spouses. The wife as moving party had relied upon s.10(1)(c) which permits the court to "order that the property be partitioned or sold for the purpose of realizing the interests in it". In holding that s.10 was not available to her, Osborne J.A., speaking for the court, stated at p. 225:

By its plain wording, s.10 of the Family Law Act, 1986 provides a procedural vehicle through which questions of ownership or possession may be determined. The court's powers, set out in s.10(1)(a) through (d) are substantive and are designed to permit the court to complete the resolution of questions of ownership or possession referred to in s.10(1).

. . .

In this case the parties have not raised any question of ownership or possession. There is no doubt that s.10 of the Family Law Act, 1986 permits the court to order that property [the matrimonial home] "be sold for the purpose of realizing the interests in it" (s.10(1)(c)). However, the basis upon which the court's power may be exercised is clearly set out in s.10(1), which, in my view, limits the scope of the section to those cases where there has been an application to determine a question of ownership or possession. In my opinion, s.10(1)(c) does not, in the circumstances, provide authority to order the sale of the parties' matrimonial home.

While Martin v. Martin dealt with an interlocutory motion, the substance of the decision goes much further. I think it is clear that s.10 is only a vehicle for enforcing substantive rights that find their origin elsewhere. In this case, the right of the respondent to possession is found in her property deed where she is shown as a tenant in common. There is no dispute as to this. Her problem is that her right to possession is no higher than that of her former husband unless s.24(1)(b) is available to her. It appears to me that it is not because she is no longer a spouse. If she wishes to pursue a remedy relating to possession she must bring an application under s.2 of the Partition Act, R.S.O. 1990, c. P.4: see Martin v. Martin, supra at p.226 and Silva v. Silva reflex, (1990), 1 O.R. (3d) 436 at 445 (C.A.).

I have a great deal of sympathy for the respondent who finds herself with no security of payment for her support payments or those of her children. She does not want possession of the former matrimonial home because she cannot afford its maintenance and carrying charges. It has no equity and a partition and sale would gain her little. However, the trial judge exceeded his jurisdiction when he attempted to use ouster of the appellant from the property as a sanction for any default in meeting his support obligations. The respondent will have to pursue other remedies including those available under the Family Support Plan Act, 1990, c. S.28 as amended by 1991, c. 5, ss. 1-12.

Accordingly I would allow the appeal and vary the judgment below by deleting paragraphs 17 and 18 thereof. In all other respects the judgment is to remain in force. In the circumstances, I would not award costs to the appellant here or below.