Bennett v. Bennett, 2011 ONCA 822

Citation: Bennett v. Bennett, 2011 ONCA 822 Date: 2011-12-22 Docket: C53900 & C54175 Court: Court of Appeal for Ontario Judges: Laskin and Epstein JJ.A. and Pardu J. (Ad Hoc)

Between:

Cathy Jane Bennett Applicant (Respondent)

and

Charles Murray Bennett Respondent (Appellant)

Counsel: Gil D. Rumstein, for the appellant Donald R. Good, for the respondent

Heard and released orally: December 9, 2011

On appeal from: The order of Justice Michael J. Quigley of the Superior Court of Justice, dated May 27, 2011 and August 2, 2011.

ENDORSEMENT

[1] We dismiss the appeal from the summary judgment granted by Quigley J. on May 27, 2011. We agree with counsel for Ms. Bennett that the parties cannot maintain the farm. This financial imperative requires that the property be sold.

[2] We allow in part Mr. Bennett’s appeal from the order of Quigley J. dated August 2, 2011. Mr. Bennett shall be entitled to amend his claim except that he shall not be entitled to assert a claim for a vesting order or a proprietary remedy.

[3] Paragraph 4 of the order of Juriansz J.A. dated September 8, 2011 staying the order for exclusive interim possession is continued. This continuation of the stay is subject to the following two terms:

(1) Ms. Bennett may attend at the property on reasonable notice to assess its condition and take any necessary steps to pursue the sale of the property;

(2) Should Mr. Bennett fail to take all reasonable efforts to cooperate with the real estate agent, then Mrs. Bennett shall be entitled to move in the Superior Court for appropriate relief.

[4] Ms. Bennett is entitled to her costs of the appeal and the motion before Juriansz J.A., which we fix in the amount of $5,000, inclusive of disbursements and applicable taxes.

“John Laskin J.A.”

“G.J. Epstein J.A.”

“G. Pardu J. (ad hoc)”