DIVISIONAL COURT FILE NO.: 06-000007-ML

Court File No: 05-FA-013855FIS (Toronto Action)

Court File No: 06-4328 (Kenora Action)

DATE: 2006-06-23

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

WENDY LEE GALE,

Elliot Birnboim, for the Applicant (Appellant)

Applicant (Appellant)

• and -

JOHN PAUL GALE,

Brendt Richardt, agent for Aaron Franks, for the Respondent (Respondent)

Respondent (Respondent)

HEARD: June 8, 2006

Mr. Justice G. P. Smith

Reasons For Judgment

Overview

1This is a motion pursuant to rule 62.04 of the Rules of Civil Procedure for leave to appeal the order of Mr. Justice Erwin Stach dated April 19, 2006.

2The applicant/appellant, Wendy Gale, (the “wife”) is the spouse of John Paul Gale, the respondent (the “husband”). Both parties are resident of Winnipeg, Manitoba and jointly own a cottage located in Kenora on Lake of the Woods.

3The cottage is valued at approximately 1.5 million dollars and is not the principle residence of the parties.

4The parties had a 30-year marriage raising three children, none of whom continue to be dependent.

5The husband earns approximately 1.5 million dollars per annum; the wife receives a salary of $65,000.00 paid from their jointly owned business.

6The parties are engaged in matrimonial litigation in Winnipeg, where the wife seeks maintenance and an equalization of the value of the assets located in the Province of Manitoba.

7Following separation in the summer of 2005, the parties verbally agreed that the wife would have exclusive possession of the matrimonial home located in Winnipeg and the husband would enjoy exclusive possession of the Lake of the Woods cottage after October 2005.

8Despite this agreement the wife attended unannounced at the cottage on or about the 19th day of December, 2005.

9On this occasion the wife removed several items of furniture and other property without the consent of the husband.

10As well, the wife took the opportunity to vandalize the cottage by breaking bottles of wine, spreading fireplace ashes around the home, knocking down the husband’s Christmas tree, breaking ornaments and lights, spilling potted plants onto the floor, removing personal papers and a Christmas gift and damaging the cottage floor and stainless steel appliances.

11Before departing the cottage the wife turned off the fuses to the furnace and outdoor hot tub; removed the hot tub insulating cover; shut off fuses to the water line heat trace system; and left three outside doors completely open despite sub-zero temperature. Finally, the wife turned on the power to the hot water heater, which had been drained for the winter thereby creating the possibility that the element, would overheat causing a potential fire hazard.

12The wife did not deny any of her conduct.

13The wife commenced an application in Ontario for partition and sale of the cottage pursuant to the Partition and Sale Act, R.S.O. 1990, c. P.4 and brought a motion for immediate sale. The husband has defended the application pleading inter alia, the verbal agreement regarding his exclusive possession of the cottage. As well, the husband commenced an application for interim and permanent exclusive possession of the cottage.

14Although there are a number of procedural issues regarding the wife’s application they are not germane for the purpose of this motion.

15The wife’s motion was argued before Stach J. in Kenora on April 12, 2006.

16The motion was dismissed with the learned motion’s court judge making the following comments at paragraphs 9, 10 and 11 of his reasons:

[9] I begin analysis from the well-entrenched proposition that a joint owner of property in Ontario has a prima facie right to partition and sale under this Provinces’ Partition Act and that, generally, applications for partition and sale on a final basis will only be refused where the application is vexatious, malicious or oppressive.

[10] On the material now before me I am quite unable to say whether the application of the wife is born of need i.e. bona fide or born of spite. The bona fides of the wife remains an open question and bears directly upon whether the court’s discretion should be exercised either in favour of the prima facie right, or denied on the basis of vexatious, malicious or oppressive conduct.

[11] The appropriate test to be applied on a motion for summary judgment is satisfied when the applicant has shown that there is not genuine issue of material fact requiring trial (Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423 at para. 27).

The Grounds of the Motion

17The wife’s Notice of Motion sets out the following grounds for leave to appeal:

1. the learned judge erred in equating an uncertainty as to whether or not any need existed with a triable issue as to the bona fides of the application. The wife submits that there is no triable issue as to whether the action is vexatious;

2. there are conflicting decisions by other judges in Ontario and it is desirable for leave to appeal be granted;

3. there is good reason to doubt the correctness of the order and the proposed appeal involves matters of importance such that leave to appeal should be granted.

The Position of the Wife

18The position of the wife is that Stach J. erred in equating “need” with “bona fide” and in failing to appreciate what could constitute “vexatious” conduct. (para. 14 of the wife’s factum).

19Further, the wife submits that “as a matter of law, the Wife need only prove a legitimate financial interest in the sale of the property in which case her Application is bona fide and not vexatious. Notwithstanding she is not required to prove such need, such need does exist in this instant case, due to the obvious entitlement to support.” (para. 15 of the wife’s factum)

Legal Framework

20The test for granting leave to appeal an interlocutory order is set out in Rule 38(1) of the Family Law Rules and Rule 62 of the Rules of Civil Procedure.

21Rule 62.02(4) of the Rules of Civil Procedure provides as follows:

(4) Grounds on which leave may be granted – Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

22In Thompson v Thompson,¹ Tulloch J. set out the basic principles to be considered in deciding to grant or refuse partition and sale of a jointly owned property:

Under the Partition Act, the application by a joint owner for sale should only be refused if the application is vexatious, malicious or oppressive. This narrow standard for the exercise of discretion flows from a joint owner's prima facie right to partition: Batler v. Batler (1988), 67 O.R. (2d) 355 (Gen. Div.) at 358 and Latcham v. Latcham (2003), C 37, 435 (Ont. C.A.) para. 2.

Disposition

23I find that the wife has not satisfied the requirements of Rules 62.02(4)(a) and (b) for the reasons that follow.

Discussion

24I do not accept the argument of the wife that “Justice Stach denied the motion solely on the basis that there may be a “triable issue” as to whether this Application for Partition and Sale may be “vexatious” on the part of the wife”. (para. 5 of the wife’s factum)

25I do not accept the argument of the wife that “…absent sustainable Family Law Act claims discretion to refuse Partition and Sale stems only from a finding that the Claim is vexatious.” (para. 23 of the wife’s factum)

26Paragraph 11 of the reasons of Stach J. sets out the proper test to be applied on a motion for summary judgment. He found that there is a genuine issue of material fact requiring a trial.

27A conclusion and decision of what constitutes vexatious conduct was not an issue on the motion, nor was it a finding of the learned motion’s court judge.

28Further, I do not accept the wife’s argument that the learned motions judge misunderstood the standard for the exercise of the court’s discretion to refuse a motion for partition and sale by equating need with bona fide and in failing to appreciate what could constitute “vexatious” conduct. (para. 14 of the wife’s factum and paras. 3 and 9 of the reasons of Stach J.)

29Clearly, a fair reading of his written reasons reveals that Stach J. fully appreciated the principle that a joint tenant of property had a prima facie right to partition and sale and the limits on the court’s discretion in refusing same.

30Nor, is there any merit to the wife’s argument that Justice Stach required the wife to prove need in order to secure a sale of the cottage.

31It was the position of the wife that a sale was justified on the basis of her financial need. In paragraph three of his reasons Stach J. states: “In the material filed by her (the wife) she supplements her claim for sale of the cottage upon the grounds of desparate financial need…”. Nowhere however, in the reasons is there any comment that indicates the learned motions judge considered financial need a requirement for partition and sale.

Rule 62.04 (a) & (b)

32With respect to Rule 62.04(a), I find that the wife has failed to demonstrate that there are conflicting decisions by another judge or court in Ontario. The test is not that a different judge may have exercised his or her discretion differently or reach a different conclusion.²

33For there to be a conflicting decision it must be shown that there is a conflict in the principles required for court to exercise its’ discretion.³ As stated above, Stach J. addressed and understood the principles relevant to the exercise of his discretion on a partition and sale application.

34Neither has the wife satisfied me that the case raises “matters of such importance” that leave to appeal should be granted.

35I adopt the comments of Catzman J. (as he then was) that: “The ‘importance’ comprehended by the rule transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application that are felt to warrant resolution by a higher level of judicial authority…”⁴.

36With respect to Rule 62.04(b) of the Rules of Civil Procedure, the wife has not demonstrated that there is good reason to doubt the correctness of Justice Stach’s order.

37For all of the reasons set out above it cannot be said that it is desirable that leave to appeal be granted.

38The parties may arrange an appointment with the trial co-ordinator to discuss the issue of costs, if required.

The Hon. Mr. Justice G. P. Smith

Footnotes

1. 1Thomson v Thomson, [2004] O.J. No. 5218
2. 2SLMsoftcom v. Rampart Securities (2005), 78 O.R. (3d) 521.
3. 3Comtrade Petroleum v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 5542.
4. 4Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569.