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BACKGROUND
This is a motion brought by the Respondent Wife for (1) access to the parties’ condominium in Oakville (“Oakville Condo”) so that she may reside in the condo pending its sale; and (2) interim spousal support. The Respondent Wife and the Applicant Husband were married in Egypt in 1996 and moved to Canada shortly thereafter. The parties have two adult children. The wife claimed that she was a victim of intimate partner violence throughout the marriage but was falsely charged with assault which resulted in her removal from the matrimonial home. As of the time of the motion, however, the charges were withdrawn. The husband denied the family violence allegations. Although the Oakville Condo was vacant and listed for sale, she claimed the husband refused to allow her to reside there. On the issue of spousal support, the husband argued that the wife was intentionally unemployed and that her medical documentation did not support her disability claim.
ISSUES
- Threshold Question of Jurisdiction: Does the Associate Judge have jurisdiction to hear the motion as it relates to the Oakville Condo?
- Can the wife live in the Oakville Condo pending its sale?
- What is the quantum of spousal support payable by the husband to the wife?
ANALYSIS
Does the Associate Judge have jurisdiction to hear the motion as it relates to the Oakville property?
According to Rule 42(5)(c) of the Family Law Rules, an Associate Judge does not have authority to determine a right or an interest of a party in real property.
In making the Order in this matter, the associate judge found that he had jurisdiction because he was asked to address the terms of a party’s residence in the broader context of a support motion, rather than determining the rights or interest to the property. The parties were already in agreement that the Oakville Condo was jointly owned and the determination of whether the husband can or cannot access the property did not require adjudication of any ‘right of possession’.
The associate judge found that he was being asked to make an order regulating conduct, not an order regarding real property itself because this issue was whether the husband could attend the Oakville Condo on notice where necessary to assist in the sale of the property.
Can the wife live in the Oakville Condo pending its sale?
As mentioned, the parties agreed that the wife could reside at the Oakville Condo pending its sale. The only issue was whether the husband may attend the property and, if so, when.
The wife was not opposed to the husband attending the property to assist with the sale; however, she wanted there to be reasonable notice. The court decided that an order requiring the husband to provide notice made sense so that the wife had the opportunity to leave the Condo if she chooses to do so.
What is the quantum of spousal support payable by the husband to the wife?
There was no question of the wife’s entitlement in this case as the parties agreed that some spousal support was owed by the husband. The issue was: How much? The wife was seeking $6,672 to $7,318 per month while the husband said he could only pay maximum $1000 per month. Under the Spousal Support Advisory Guidelines, the husband ought to have paid the wife $2641.00 a month at the low range or $3082.00 at the mid-range. The discrepancy in the parties’ position stems from their disagreement regarding the husband’s income and the husband’s view that the wife’s income should have been imputed.
The wife reflected her income in her affidavit to be $32,000. The court accepted this amount as her income because the husband was not able to prove that the wife was intentionally underemployed as a result of her disability. The husband submitted photos of the wife engaging in physical activity, however, the associate judge did not find them persuasive. As such, there was no basis to impute additional income to the wife.
With respect to the husband’s income, the wife put forward that his income was $250,000 based on his 2024 Notice of Assessment. The husband said his income was approximately $170,000, which was based on his Financial Statement sworn in February 2026. The husband’s February Financial Statement did not have any supporting documents attached, and so, the court decided to look to the husband’s November 2025 Financial Statement because it was the most recent statement filed with supporting documentation. The supporting documentation from the November 2025 statement showed the husband’s income at approximately $216,000. The court clarified that in accepting this amount, it was not imputing income to the husband but simply using the best evidence available at the motion.
CONCLUSION
Ultimately, the court ordered that the wife was permitted to reside in the Oakville Condo until it was sold, and that the husband should not attend the Condo except to assist with its sale. Prior to attending the property, the husband must give 24 hours’ notice or a shorter time if it is agreed upon by the parties.
With respect to spousal support, the husband was ordered to pay ongoing monthly support in the amount of $4,500 on a without prejudice and interim basis to the wife.
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