) ) Anu Dhir Appellant – v. –, 2023 ONSC 4958

CITATION : Dhir v. Malaviya, 2023 ONSC 4958 DIVISIONAL COURT FILE NO.: 22-62 DATE: 20230831 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Heeney, Stewart and Sutherland JJ. BETWEEN: ) ) Anu Dhir Appellant – and – Sanjai “Sanjay” Malaviya Respondent ) ) ) ) ) ) ) ) ) Heather Hansen and Maureen Edward s, for the Appellant Daryl Gelgoot and Vanessa Amyot , for the Respondent ) ) ) HEARD by videoconference in Brampton: March 10, 2023 REASONS FOR DECISION Stewart J.

Nature of the Appeal [ 1 ] The Appellant Anu Dhir (“Dhir”) appeals the Order dated August 17, 2022 made by Stribopoulos J. which ordered the sale of the parties’ home at 1470 Watersedge Road, Mississauga (“Watersedge”) with a listing date to be chosen before the hearing date of a pending motion for

summary judgment brought by the Respondent Sanjay Malaviya (“Malaviya”). The Order requires that the proceeds of any sale of Watersedge are to be held in trust pending resolution, determination of the dispute, or further order of the Court. Dhir requests that the Order be set aside. [ 2 ] Malaviya submits that the Order should not be interfered with and this appeal be dismissed. [ 3 ] For the reasons that follow, I agree that there is no basis for interfering with the Order and would therefore dismiss this appeal. Background [ 4 ] The parties are not married to each other.

They cohabited for approximately 18 years and separated in 2020. [ 5 ] The parties have two children, ages 14 and 5, who reside with Dhir at her residence in Toronto and with Malaviya at a residence in Toronto he has purchased. Since separation, Malaviya has been paying the upkeep and expenses associated with Watersedge in a monthly amount close to $6000.00. [ 6 ] Malaviya holds registered sole title to Watersedge.

He submits that he was required to bring the motion seeking an order directing that the property be listed for sale because he no longer wished to pay the very high cost of maintaining a vacant property that he was not able to use and was no longer required for Dhir and their children to reside in. [ 7 ] Dhir opposed the request for an order requiring a sale.

Although neither she nor the children are residing at Watersedge, Dhir argues that it is in their best interest that it not be sold so they might be permitted to use it on occasional weekends to visit with family and friends in Mississauga. [ 8 ] The motion judge concluded that Watersedge should be sold as requested. A listing agent was named and it was ordered that the best offer to purchase the property be accepted and that the full proceeds of sale be paid into court upon closing. Either party would be at liberty to offer to purchase the property if prepared to offer the best price.

[9] The decision of the motion judge was based on the factors for consideration as set out in the applicable authorities includingDhaliwal v. Dhaliwal, 2020 ONSC 3971, and on findings that included the following: (

a) Watersedge is not the principal residence of either party or their children; (

b) Access to Watersedge was not essential to the maintenance by the children of their relationships with family and friends inMississauga; (

c) It is reasonable for Malaviya to seek to relieve himself of the obligation to spend nearly $6000 per month maintaining a propertyhe does not use and the children do not reside in; (

d) There was no evidentiary basis to conclude that the children would suffer a negative impact as a result of the proposed sale. Inparticular, they would not be uprooted from their family home; (

e) Although Dhir maintains that she has a contractual right to purchase Watersedge in accordance with the terms of a CohabitationAgreement between the parties (which she, somewhat contradictorily, seeks to set aside in these proceedings) she had not accepted orpursued Malaviya’s offer to sell his interest in Watersedge to her for a purchase price equal to one-half of its appraised value; (

f) Dhir’s loss of the ability to be in a possible position to purchase Watersedge, depending on the outcome of her financial claimsat trial, is not the sort of prejudice that is of a magnitude that would justify refusing an order for its sale in these circumstances. Jurisdiction [10] Section 19(1) of the Courts of Justice Act (“CJA”), RSO 1990, c C.43 provides that an appeal lies to the Divisional Court froma final order of a judge of the Family Court made under a provision of

an Act or Regulation of Ontario.

Section 7 of the Partition Act,RSO 1990, c P.4 provides that an appeal lies to the Divisional Court from any order made under it. Standard of Review [11] The parties agree that the appellate standard of review applies to this appeal. Where an error can be attributed to theapplication of an incorrect legal principle, the standard of review is that of correctness. Questions of fact or of mixed fact and law cannotbe disturbed unless a palpable or overriding error can be demonstrated (see: Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 SCR235).

Law and Discussion [12] Dhir submits that the motion judge erred in failing to properly consider the prejudice to her rights under the CohabitationAgreement which provides her with the option to purchase Malaviya’s interest in Watersedge.

Despite the fact that she also takes theposition that the Cohabitation Agreement is unenforceable, Dhir submits that the validity of the Cohabitation Agreement is an issue thatshould be determined before any motion to sell Watersedge is heard or any order for its sale is made. [13] Dhir also suggests that the motion judge misapprended the evidence when he found that Malaviya had offered to sell hisinterest in Watersedge to the Appellant for half the property’s appraised value, that she had declined such offer and had proceededinstead to purchase a property in Toronto.

Dhir submits that Malaviya had not offered to sell his interest in Watersedge to her but hadoffered only to buy out her interest. [14] Malaviya points out that Dhir did not seek to exercise any right pursuant to the Cohabitation Agreement that she now seeks toset aside.

Rather, Dhir made it clear to him that she had no intention of accepting his proposal to buy or of making any counter-offer topurchase his interest in the Watersedge property on the same or a different basis. [15] Malaviya therefore submits that if the motion judge did make any error of fact regarding whether he had offered to sell hishalf interest in Watersedge to Dhir, such error is not of such a significance as to justify setting aside the Order. I agree. [16] Malaviya also submits that the motion judge was not required to wait for a determination of the validity of the CohabitationAgreement because (

a) Dhir’s claims of prejudice are prefaced on adherence to a contract that she seeks to set aside, (

b) he offered to sellhis interest in Watersedge to Dhir for half its appraised value, an offer that was rejected, and (

c) Dhir’s desire to await the outcome of thelitigation in the event she might ultimately have the resources to purchase the property does not amount to sufficient prejudice to justifydenying its sale. In doing so, the motion judge was alive to and applied the factors to be considered when faced with such an issue. [17] I agree with Malaviya’s position in that same regard. Indeed, Malaviya would be the party suffering prejudice if a sale wererefused as he would be required to continue paying significant maintenance expenses for an essentially unused property.

To the extentDhir claims financial relief in these proceedings, it is trite to observe that any unnecessary expenditures, including those made by partiesof significant means, may have a negative impact on both parties as well as their children. [18] In this case, the liquidation of the value of Watersedge by a sale is balanced by the condition that payment of the full proceedsof such sale into court be required to await final disposition of the entire dispute.

The principal dispute between the parties insofar as itmay engage Watersedge is a financial one, described by the motion judge as being a claim by Dhir for equitable relief for contributionsshe asserts she made to Malaviya’s business interests. The Order does not operate to disadvantage either party in pursuing adetermination of this or any other financial issue. [19] Accordingly, I do not perceive any basis upon which this Court might be justified in disturbing the Order of the motion judge. Conclusion [20] For these reasons, this appeal is dismissed.

Costs [ 21 ] The parties have agreed that costs of this appeal in the all-inclusive amount of $15,000.00 shall go to the successful party and be payable by the unsuccessful party. Costs in that amount are therefore awarded to Malaviya and to be paid by Dhir. _______________________________ Stewart J. I agree _______________________________ Heeney J. I agree _______________________________ Sutherland J. Released: August 31, 2023 CITATION : Dhir v. Malaviya, 2023 ONSC 4958 DIVISIONAL COURT FILE NO.: 22-62 DATE: 20230831 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Heeney, Stewart and Sutherland JJ.

BETWEEN: Anu Dhir Appellant – and – Sanjai “Sanjay” Malaviya Respondent REASONS FOR DECISION Stewart J. Released: August 31, 2023