Court File and Parties
COURT FILE NO.: CV-24-44 DATE: 2024/04/10 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
MICHAEL SAUVE, ESTATE TRUSTEE FOR THE ESTATE OF JULIA ANN DAVIDSON, DECEASED Applicant – and – KEVIN DAVIDSON, DOUGLAS DAVIDSON, and ALLAN DAVIDSON Respondents
Counsel: Sean Butt, for the Applicant Unrepresented
HEARD: March 7, 2024 (By videoconference)
RULING
(Application Under the Partition Act)
Corthorn J.
Introduction
[1] In 1987, the Late Julia Ann Davidson (“the Deceased”) and her three brothers inherited property, as tenants in common, from their grandmother. The respondents in this proceeding are the Deceased’s three brothers. The subject property is described municipally as 573 Cleveland Road, in Eldorado, Ontario (“the Property”).
[2] The Deceased passed away in January 2023, without a will. The Deceased’s spouse, Michael Sauve, obtained a Certificate of Appointment as Estate Trustee. In June 2023, Mr. Sauve arranged for the transfer of the Deceased’s interest in the Property to his name, in his capacity as Estate Trustee.
[3] The Deceased and Mr. Sauve were not married. They have three children: Andrew Sauve, Miles Sauve, and Emily Sauve (“the Children”). The Children are the beneficiaries of the Deceased’s estate (“the Estate”).
[4] In the context of administering the Estate, Mr. Sauve approached the respondents in the hope of reaching an agreement with them for the partition and sale of the Property. The communication with the respondents in that regard was from both Mr. Sauve personally and from Mr. Sauve’s counsel. The latter communication included notice that if one or more of the respondents was not prepared to purchase the Estate’s interest in the Property, then an application for partition and sale of the Property would be made.
[5] None of the respondents expressed an interest in purchasing the Estate’s share of the Property. In January 2024, Mr. Sauve commenced this application.
[6] The issues to be determined are (a) whether the Property is to be partitioned and sold, and, if so, (b) the terms on which the Property shall be sold.
[7] For the reasons which follow, I conclude that the Property shall be partitioned and sold. The terms pursuant to which the Property shall be sold are set out at the end of this ruling.
Procedural History
[8] The application was commenced on January 30, 2024. The application record includes the originating process and an affidavit sworn by Michael Sauve on January 30, 2024. (“the Sauve affidavit”).
[9] Each of the respondents was personally served with the application on either February 9 or 10, 2024. After being served with the application record, none of the respondents (a) delivered a notice of appearance, or (b) communicated with Mr. Sauve or his counsel.
[10] The only evidence before the court is the Sauve affidavit. The ruling on this application is based on the unchallenged and uncontradicted evidence of Mr. Sauve.
[11] One of the respondents, Kevin Davidson, was present in court on the return of the application. Kevin Davidson confirmed to the court that his sole purpose in attending was to observe the hearing. Kevin Davidson did not request, and he was not given, an opportunity to make oral submissions.
[12] I turn next to the relevant events – from the inheritance of the Property to the efforts made to secure the agreement of the respondents to sell the Property and divide the net proceeds of sale equally amongst the four tenants in common.
Background
[13] Set out below is a chronology of events related to ownership of the Property and to Mr. Sauve’s administration of the Estate:
March 13, 1987 - The Deceased and the respondents inherit the Property, as tenants in common from their grandmother. January 20, 2023 - Julia Ann Davidson passes away, without a will. May 2, 2023 - Michael Sauve obtains a Certificate of Appointment as Estate Trustee. June 13, 2023 - The Deceased’s interest in the Property is transferred to the Estate. June 19, 2023 - Mr. Sauve’s counsel sends a letter to the respondents, inquiring whether one or more of them is interested to purchase the Estate’s one-quarter interest in the Property. January 4, 2024 - Mr. Sauve’s counsel sends another letter to respondents, inquiring again as to the potential for one or more of the respondents to purchase the Estate’s interest in the Property.
[14] The passage of approximately 6.5 months between the two dates on which Mr. Sauve’s counsel sent a letter to the respondents is explained by s. 3(2) of the Partition Act, R.S.O. 1990, c. P.4. Pursuant to that section, no proceeding for partition and sale may be commenced within the first year following the death of an owner of property. The application before this court was commenced approximately one year and ten days following the Deceased’s date of death.
[15] In the first letter to the respondents, sent in June 2023, Mr. Sauve’s counsel refers to communication directly between Mr. Sauve and the respondents about the possibility of one or more of them purchasing the Estate’s interest in the Property. The details of that communication are not described in either that letter or in the Sauve affidavit.
[16] Based on the contents of counsel’s June 2023 letter to the respondents, I draw an inference and find that, before he retained counsel to represent the Estate regarding partition and sale of the Property, Mr. Sauve personally made informal inquiries in that regard of the respondents. The point is that the inquiries, whether from Mr. Sauve or his counsel, went unanswered.
[17] I turn next to the issues to be determined on this application.
Issue No. 1 - Is the Property to be Partitioned and Sold?
a) The Law
[18] The jurisdiction of this court to make an order for the partition and sale of jointly owned property is found in ss. 2 and 3 of the Partition Act. Those sections read as follows:
All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable only.
(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.
[19] A request made by an owner of property for partition and sale will be denied only in exceptional circumstances: Rennie v. Rennie et al., 2019 ONSC 2948, at para. 26; and Duong et al. v. Duong, 2021 ONSC 4627, at para. 7.
[20] A court has the discretion to refuse to order partition and sale of property if the court finds that the party requesting partition and sale has engaged in malicious, vexatious, or oppressive conduct: Rennie, at para. 26; and Duong, at para.7.
[21] The onus is on a party opposed to a request for an order for partition and sale of property to establish that the requesting party engaged in malicious, vexatious, or oppressive conduct: Rennie, at para. 26 (citation omitted); and Duong, at para. 7 (citation omitted).
[22] A request for an order for partition and sale of property does not, in and of itself, constitute vexatious conduct: Kaphalakos v. Dayal, 2016 ONSC 3559, at para. 26.
b) Analysis
[23] As an owner of the Property, the Estate has a prima facie right to an order for partition and sale of the Property: Rennie, at para. 25, citing Afolabi v. Fala, 2014 ONSC 1713, 46 R.F.L. (7th) 75, at para, 27.
[24] The respondents did not respond to the application. There is no evidence to support a finding that Mr. Sauve engaged in malicious, vexatious, or oppressive conduct. I am satisfied that Mr. Sauve, in his capacity as Estate Trustee, is entitled to an order for partition and sale of the Property.
[25] I turn next to the terms pursuant to which the Property shall be sold.
Issue No. 2 - On What Terms is the Property to be Partitioned and Sold?
[26] There is no evidence as to the type of property the parties own as tenants in common. For example, is it a residential, cottage, or commercial property? As another example, is the Property occupied or vacant?
[27] Regarding the second question posed in the preceding paragraph, none of the respondents was served when at the Property. From the affidavits of service, I draw an inference and find that none of the respondents resides at the Property. There is no evidence to indicate whether anyone – a family member or tenant – resides at the Property. If there is a tenant residing at the Property, any relief required for the parties to obtain vacant possession of the Property is beyond the scope of this proceeding.
[28] The order made on this application addresses the practicalities of the sale, including preparing the Property for sale, the listing and sale of the Property, and accounting for the net proceeds from the sale of the Property.
[29] In light of the respondents’ failure to respond to Mr. Sauve’s inquiries, inquiries from Mr. Sauve’s counsel, and this proceeding, I am satisfied that it is reasonable (a) for Mr. Sauve to have carriage of the sale, and (b) to dispense with the requirement for Mr. Sauve to obtain the consent and/or signatures of the respondents at any step of the sale process. Mr. Sauve cannot count on the respondents to co-operate in the sale process or to respond, when required, in a timely manner. The terms included in the order below are intended to provide Mr. Sauve with the authority to unilaterally manage the sale of the Property.
[30] In making the order set out below, I am mindful that, pursuant to the Partition Act, the court has a broad discretion. That discretion includes the power to make all allowances and give such directions as will result in equity to the parties: Mastron v. Cotton, [1926] 1 D.L.R. 767 (Ont. S.C. App. Div.), at p. 768.
Disposition
[31] For the reasons set out above, I make the following order:
- The property known municipally as 573 Cleveland Road, Eldorado, Ontario, (“the Property”), and legally described as follows: LT 29 CON A TUDOR; PT LT 30 CON A TUDOR AS IN QR372683; TUDOR & CASHEL ; COUNTY OF HASTINGS PIN 40222-0096 (LT) shall be listed for sale.
- The selection of a real estate agent for the listing, marketing, and sale of the Property shall be at the sole discretion of the applicant.
- The consent of the respondents regarding any step in the listing, marketing, and sale of the Property shall be and is dispensed with.
- The requirement for the execution, by the respondents, of any documents necessary for the listing, marketing, and sale of the Property, including but not limited to a listing agreement, an agreement of purchase and sale and any schedules thereto, shall be and is dispensed with.
- The selection of a lawyer to act on behalf of the parties to this proceeding for the closing of the sale of the Property shall be at the sole discretion of the applicant.
- All reasonable costs necessary and incidental to the sale of the Property, including but not limited to legal fees and disbursements and real estate commissions, shall be paid from the proceeds from the sale of the Property.
- The lawyer retained by the applicant for the sale of the Property shall hold the net proceeds of sale in trust, pending further order of this court or, alternatively, agreement of the parties.
- The costs of the application to the date of this order shall be payable from the Estate of Julia Ann Davidson.
- The balance of the application may be returned on seven (7) days’ notice by any party for an accounting for the net proceeds of sale and for costs of the continuation of the application.
[32] The term regarding costs, in sub-paragraph 8, above, is in accordance with the relief requested by Mr. Sauve. He does not request an order requiring the respondents to pay the costs of the application.
[33] With the application commencing before me, I remain seized of the matter. The balance of the application, if pursued in accordance with sub-paragraph 9, above, shall proceed before me by videoconference.
Madam Justice Sylvia Corthorn
Released: April 10, 2024