COURT FILE NO.: 598/08
DATE: 20081217
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, LEDERMAN AND SWINTON JJ.
B E T W E E N:
LAUREN BAILEY AND EMMETT BAILEY
Applicants
(Respondents)
- and -
DONALD RHODEN
Respondent
(Appellant)
Kenneth C. Vaughan, for the Applicants (Respondents)
Romeo D’Ambrosio, for the Respondent (Appellant)
HEARD at Toronto: December 17, 2008
FERRIER J.: (Orally)
[1] There are two main issues on the appeal:
(i) Whether the appellant should have the right to purchase the property without it being exposed to the market, and
(ii) Whether the order of Strathy J., that the appellant vacate the property on or before October 31, 2008, should be set aside and that the appellant be permitted to remain in possession until the sale.
[2] Dealing with the first issue: There is no authority in this Court to deny a property co-owner the right to have his or her interest sold in the open market place. Accordingly, the order of the applications judge directing a sale and a reference in connection therewith is correct.
[3] In reference to the second issue: Concerning the occupation of the premises pending the sale, the reasons of the applications judge do not reveal the basis of his order requiring the appellant to vacate on October 31, 2008. The respondents argue that given the history of the relationship between the parties, and given that the appellant wishes to purchase the property, (obviously at a good price), he will take steps which will impede the sale or discourage other prospective purchasers.
[4] The applications judge does not appear to have addressed the hardship to the appellant in requiring him to move immediately nor the impracticalities in connection with selling a vacant house. Nor do his reasons indicate that he considered the need to maintain the mortgage payments and meet the other expenses of maintaining the house until the sale. Significantly he made no order in respect to the payments pending the sale.
[5] The appellant has indicated that he will make the mortgage payments and meet the other expenses for taxes, utilities and maintenance of the home until the sale.
[6] With respect, we are of the view that the learned applications judge, in failing to take these factors into account, made a reversible error.
[7] Accordingly, the appeal is allowed in part and the order of Strathy J. is varied to delete the requirement that the appellant vacate the premises on October 31, 2008.
[8] This Court further orders that the appellant be permitted to remain in possession until the closing of the sale.
[9] Further, an order will issue requiring all parties to co-operate in the sale process in good faith and all parties are prohibited from taking any steps to frustrate or impede the sale.
[10] Further, the appellant and his family presently occupying the premises shall not be present when the property is viewed by prospective purchasers or their agents.
[11] In addition, any party is at liberty to submit an offer to purchase the property and for purposes of clarity, the referee shall be the Master at Toronto.
[12] In addition, paragraph five of the order of Strathy J. is amended by deleting the words “and to prepare a listing of the property” at the end of the paragraph. If the parties are unable to agree on a listing price, that question shall be determined by the Master on the reference.
COSTS
[13] We have conferred and we are unanimous in the view that there should be no order as to costs of this appeal. For clarity, the order for costs below will remain in place.
FERRIER J.
LEDERMAN J.
SWINTON J.
Date of Reasons for Judgment: December 17, 2008
Date of Release: December 22, 2008
COURT FILE NO.: 598/08
DATE: 20081217
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, LEDERMAN AND SWINTON JJ.
B E T W E E N:
LAUREN BAILEY AND EMMETT BAILEY
Applicants
(Respondents)
- and -
DONALD RHODEN
Respondent
(Appellant)
ORAL REASONS FOR JUDGMENT
FERRIER J.
Date of Reasons for Judgment: December 17, 2008
Date of Release: December 22, 2008