The appellant and respondent, former common law spouses, co-owned a cottage property.
The respondent sought an order for the sale of the property under the Partition Act.
The application judge ordered the sale, including a term requiring any purchaser to grant a right-of-way to neighbouring property owners, reflecting the original purchase agreement.
The appellant appealed the inclusion of this term and the award of full indemnity costs.
The Divisional Court dismissed the appeal regarding the sale term, finding no error in the application judge's conclusion that omitting the term would create uncertainty and reduce the sale price.
However, the court allowed the appeal on costs, varying the award from full to substantial indemnity because the application judge erroneously relied on an undertaking that did not apply to the proceeding.
