Court of Appeal for Ontario
Before: O’Connor A.C.J.O., Simmons and Juriansz JJ.A.
Between:
Kimberley Marie Stephens
Respondent
and
William Russell Stephens
Appellant
Counsel:
William Russell Stephens, in person
Paul Amey, for the respondent
Heard and released orally: September 9, 2010
On appeal from the order of Justice James Kent of the Superior Court of Justice dated September 17, 200.
ENDORSEMENT
1The appellant husband appeals from an order permitting the respondent wife to purchase his interest in the matrimonial home at a price fixed by the court. He contends that the respondent failed to give adequate notice of her intention to seek such an order.
2We agree. The respondent served a motion requesting an order for the sale of the matrimonial home. Although she adverted to her desire to purchase the home in a subsequently filed supplementary affidavit, the respondent failed to serve an amended notice of motion indicating her intention to request an order permitting her to purchase the appellant's interest in the matrimonial home at a price fixed by the court. The appellant was not present in court when the issue was eventually argued.
3In the circumstances, the failure of the respondent, who was represented by counsel, to serve a revised notice of motion is not a minor irregularity but rather an omission that created procedural unfairness. An order for sale at a price fixed by the court is significantly different from an order for sale on the open market and had the potential to prejudice the appellant's interests.
4We note that the material presented to the motion judge may have implied that there was an agreement between the parties. Moreover, the motion judge was not informed that the appellant had not received notice of the respondent’s revised request.
5The sale ordered by the court has been completed and the respondent has now re-sold the house. In these circumstances, the appellant does not seek an order setting aside the transactions but rather seeks compensation for his fair share of the house.
6In all the circumstances, we would not set aside the sale from the appellant to the respondent. Rather, in our view, the respondent took title to the house and held the appellant's interest in the house in trust for him up to the point of her subsequent re-sale of the house and should account to him accordingly. All issues of accounting arising from these transactions are remitted to the court below to be dealt with together with outstanding equalization issues.
7In making this disposition we should not be understood to have ruled that a court has authority to make an order for sale of a joint owner's interest in property to another owner at a price fixed by the court where the parties have not agreed on the fair market value of the property. See Martin v. Martin (1992), 1992 7402 (ON CA), 8 O.R. (3d) 41 (Ont. C.A.) and Willemze-Davidson v. Davidson (1997), 1997 1440 (ON CA), 98 O.A.C. 335 (Ont. C.A.)
8Accordingly, the appeal is allowed and the matter is remitted to the court below to be dealt with in accordance with these reasons.
9The costs order below is set aside. Costs of the appeal are to the appellant fixed at $1,500 inclusive of any applicable taxes.
Signed: “D. O’Connor A.C.J.O.
“Janet Simmons J.A.”
“R. G. Juriansz J.A.”
