DATE: 20020529 DOCKET: C37435

COURT OF APPEAL FOR ONTARIO

RE:

PAULA ANNE LATCHAM (Appellant/Respondent) - and - MICHAEL ALBERT LATCHAM and BRIAN ANDREW LATCHAM (Respondents/Applicants)

BEFORE:

MCMURTRY C.J.O., LASKIN AND CHARRON JJ.A.

COUNSEL:

John M. Freeman

for the appellant

Allan S. Cooper, Q.C. and

Andrea Margles

for the respondent

HEARD:

May 10, 2002

On appeal from the order of the Divisional Court (James B. S. Southey, Edward F. Then, and Moira L. Caswell JJ.) dated September 11, 2001.

E N D O R S E M E N T

Released Orally: May 10, 2002

[1] [1] A fair reading of the motion judge’s endorsement shows that she did not apply the proper standard for the exercise of the court’s discretion to refuse partition under s. 2 of the Partition Act.

[2] [2] That standard, as the Divisional Court noted, was reaffirmed by this court in Silva v. Silva (1990), 1990 6718 (ON CA), 1 O.R. (3d) 436 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.

[1] [3] The Divisional Court concluded on the evidence that the appellant had not shown malicious, vexatious or oppressive conduct. We agree with that conclusion.

[2] [4] In assessing whether the conduct complained of was oppressive, the court has to consider the terms of the trust declaration, the previous agreement to sell and the needs of the respondents, as well as the needs of the appellant. Taking all these considerations into account we are not persuaded that oppression has been made out.

[3] [5] The appellant advanced an alternative argument that refusing partition would be tantamount to awarding her the support she would be entitled to under s. 32 of the Family Law Act. We see no merit in this argument. It was not made before the motions judge. Nor has the appellant ever made a claim for support for her children even though the application for partition was brought over two years ago. Finally, the court does not have the proper evidentiary record even to consider the appellant’s support claim.

[4] [6] The appeal is therefore dismissed with costs. We fix those costs, including the costs of the motion for leave to appeal, at $7,500.

“R.R. McMurtry CJO”

“John Laskin J.A.”

“Louise Charron J.A.”