Court File and Parties

BARRIE COURT FILE NO.: FC-16-1311-00 DATE: 20181025 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Renate Crews, Applicant -and- Dennis Bradford, Respondent

BEFORE: The Honourable Mr. Justice J.P.L. McDermot

COUNSEL: Pierre Sicco, for the Applicant Ashley H. McInnis, for the Respondent

HEARD: October 25, 2018

Endorsement

[1] This is the respondent’s motion for partition and sale of the common residence owned by the parties and located at 7528 County Road 14, Tottenham, Ontario.

[2] These parties have cohabited for more than 20 years. They are unmarried. They have owned the home jointly for 18 years.

[3] Ms. Crews says that she is really the sole owner of the home in equity. She says she renovated the home extensively to the extent that Mr. Bradford’s interest in the home is now extinguished. Mr. Bradford admits that the home was renovated, but he says he paid for it.

[4] The home has been appraised at being worth about $750,000. There are encumbrances on the home of about $250,000.

[5] Mr. Bradford requests a sale of the home. He is in the partially unfinished basement and he says that the living conditions are becoming intolerable. Ms. Crews agrees that Mr. Bradford lives in the basement, but she says he does this by choice, and that he is responsible for his own living conditions.

[6] Ms. Crews operates a dog grooming business from the garage of the home but her income is limited. She has nine small dogs in the upper portion of the home. Mr. Bradford has three German Shepherds in the basement with him. The parties are in breach of the local bylaw which permits only three dogs per household without a kennel license.

Procedural Issues

[7] Mr. Sicco said that the motion could not be argued on the basis set out in the respondent’s materials. He said that Mr. Bradford had brought his motion under Rule 14 and that there was no jurisdiction to permit a motion under the Partition Act under the Family Law Rules as that legislation was not recited in Rule 1(2). He noted that this was a request for a final order, and, if anything, it should be brought by way of a motion for summary judgment under the Rules of Civil Procedure: see Batler v. Batler, [1988] O.J. No. 2115 (H.C.) at para. 15.

[8] As I advised Mr. Sicco, if there was no jurisdiction to bring this motion, this would be surprising to many family law judges who often entertain motions for partition and sale by way of an interim motion under Rule 14. There is authority for doing so: see Ross v. Ross, 2010 ONSC 3590 at para. 52 where Pedlar J. stated that the “right of a joint owner for partition or sale is available on an interim motion and the court should compel such partition or sale if no sufficient reason appears why such an order should not be made.”

[9] The courts have also long entertained, as shown in Batler as well as in Silva v. Silva (1990), 1 O.R. (3d) 436 (C.A.), partition and sale proceedings within family law proceedings.

[10] To be clear, this a motion under Rule 14. That is the general rule permitting motions to be made in a proceeding. The fact that a motion is being made in a proceeding under Rule 14 does not mean that the court is restricted to making a temporary order: for example, a motion for striking pleadings may result in a final order, but that motion may be brought under Rule 14. The fact that the Rule is titled “Motions for Temporary Orders” does not mean that the Rule is restricted only to temporary relief.

[11] In any event, even if this is seen as a motion for summary judgment, I am not going to make the respondent bring a new motion. All that will result is a new motion on the same evidence that is before me. When I asked Mr. Sicco what the prejudice is to entertaining this motion under Rule 16, he said that his material would be more detailed. I cannot believe that to be the case; he says he only saw that there was a jurisdictional issue last night, and I would have expected his client, when she was facing a motion for the sale of the home and when preparing material, to have put her best foot forward in this matter and place all relevant evidence before the court.

[12] Finally, if necessary, I can import the Rules of Civil Procedure if a matter is not addressed by the Family Law Rules. For example, when considering partition and sale, the family courts almost always consider Rule 66.03 of the Rules of Civil Procedure regarding distribution of funds.

[13] In light of the primary objective concerning family law matters contained in Rule 2(2) (dealing with cases justly), it would not be in the interests of justice to make the respondent bring a new motion on the same evidence that is before me today. All that would do is delay matters, which may be the intention of the applicant who resists a sale of the property. Based upon this, I ordered that argument of the motion proceed.

Partition and Sale

[14] This is a motion for partition and sale under the Partition Act, which reads as follows:

3. (1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.

[15] The case law generally favours an order for partition and sale of a home by a cotenant unless the opposing party can demonstrate prejudice. The onus is generally on the party resisting the sale to show prejudice, and that has been defined as being malicious, vexatious or oppressive conduct by the moving party seeking the sale. That type of conduct is essentially bad faith conduct involving some sort of hidden agenda or purpose connected to the request for a sale of the property: see Akman v. Burshtein, [2009] O.J. No. 1499 (S.C.J.) at para. 38. The standard of malicious, vexatious or oppressive conduct has been confirmed by the Court of Appeal in Latcham v. Latcham (2002), 27 R.F.L. (5th) 358 (Ont. C.A.) where the court confirmed the high threshold required to resist the sale of a home as follows [at para. 2]:

That standard, as the Divisional Court noted, was reaffirmed by this court in Silva v. Silva (1990), 1 O.R. (3d) 436 (Ont. C.A.) and requires malicious, vexatious or oppressive conduct. This narrow standard for the exercise of discretion flows from a joint owner's prima facie right to partition.

[16] In this case, Ms. Crews says that she is resisting the sale because she will not have the ability to find a place to operate her business or to keep her nine dogs if the home is sold. However, it appears she should not even be keeping her dogs at the common residence based upon the municipal by-law which only permits three dogs at a residence. Moreover, her business only earns her $150 per month according to para. 52 of her own affidavit. I note as well that the cases say that “personal hardship or inconvenience is not oppressive”: Akman v. Burshtein at para. 58. The complaints about the animals or the business, however compelling that might be, do not constitute oppressive conduct.

[17] Ms. Crews also says that the order should be refused because she is claiming the whole of the equity in the home. She says that an order for sale will frustrate that. However, that claim is based upon contested evidence by both parties, and it would be a high threshold to have a court find that Mr. Bradford’s interest in the home has been entirely extinguished by renovations, no matter how extensive they were. What is not contested is that legal title to the home is held jointly by the parties, and that brings us within s. 3 of the Partition Act. As well, Ms. Crews is not prejudiced as the net proceeds for the home will be paid into court or into trust, and will be available to her if she succeeds in her claim, no matter how unlikely.

[18] These parties have been separated since July of 2015, more than three years ago. They have been litigating since November, 2016 and have not yet had a settlement conference. They are separate and apart under the same roof and that cannot be pleasant or healthy for anyone. It is time that the home be sold so that the parties can get on with their lives and I am going to facilitate that through the sale of the home. Moreover the applicant has not met the onus of showing oppressive, malicious or vexatious conduct.

[19] I am not going to order that either party receive funds from the home except by further court order or agreement of the parties. I agree with Ms. McInnis that neither party should have a leg up or advantage in this litigation.

[20] As discussed, the spousal support motion brought by the applicant is adjourned to the settlement conference or an earlier date to be set through the trial coordinator upon a sale of the home.

Order

[21] There shall be an order to go as requested in para. 1 to 6 inclusive of the respondent’s notice of motion at Tab 11 of Volume 1 of the continuing record. In addition, order to go:

(a) Each party shall be responsible to keep the area of the home in which he or she occupies or resides in neat and saleable condition.

(b) The dogs belonging to the respective parties shall be removed from the home for real estate showings by the agent.

(c) The funds from the sale of the home shall be paid into court pursuant to Rule 66.03 of the Rules of Civil Procedure. Alternatively, if the parties agree, the funds may be held in trust by the real estate solicitor handling the sale of the home. Either party may move before this court for a release of funds from trust, or alternatively the parties may consent to interim disbursements of the net proceeds from time to time.

(d) The respondent shall have access to the garage in order to retrieve his motorcycle on 24 hours’ notice to the applicant.

(e) The respondent shall continue to pay $1,918 every two weeks into the joint account, and the applicant shall pay the expenses of the home from that account until the home is sold.

McDermot, J. Released: October 25, 2018