Westeinde v. Bakker, 2012 ONSC 1760

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11-52838
DATE: 20120315

RE: JULIE WESTEINDE, Applicant

AND:
BART BAKKER, Respondent

BEFORE: Honourable Justice Timothy Ray

COUNSEL: Counsel, for the Pam MacEachern.
Respondent, self represented.

HEARD: March 15, 2012

ENDORSEMENT

1## Adjournment Request

At the outset, the respondent sought an adjournment. It was opposed by the applicant. For oral reasons given, the request for an adjournment is dismissed in part.

2## Background and Analysis

The applicant seeks orders for the partition and sale of what was the home of the parties while they were together. It is apparent from the order of Justice Kane dated January 10, 2012 that the parties were generally in agreement for the partition and sale, and also the parties respective shares. What seemed to be delaying the proceeding was the respondent’s wish to buy the applicant’s share rather than putting it on the market. He says he now has an investor. Also outstanding is an accounting concerning his expenses while living in the house.

3Mr. Bakker consulted counsel who was actually present before Justice Kane but who was not actually retained by Mr. Bakker until now. His counsel is away on vacation this week. However, he would have known on January 10, 2012 that

this was the adjournment date. He would also have known of the various conditions that were imposed on Mr. Bakker, largely with his agreement – none of which have been complied with. I heard Mr. Bakkers submissions and note that his counsel could have but didn’t see fit to put the factual portion of his submissions into an affidavit before he left on vacation.

4I’m satisfied that the interests of the parties are met by ordering the immediate listing of the property for sale but with a provision that the respondent may make an offer to purchase the property from the applicant, and if successful, then no commission will be payable. However, the respondent should move quickly if he intends to make an offer.

5I am also satisfied that the accounting issues should be adjourned so the parties will know what the numbers are. If the respondent decides to retain counsel, then he can have assistance at that stage.

6## Order

Orders to go in accord with the prayer for relief in the application as follows:

a. An Order for Partition and Sale of the property, located at 62 Carlyle Avenue, Ottawa, Ontario, legally described as PT LT 5, PL 165776, Part 1, 5R9008, held as tenants in common by the Applicant and Respondent, shall be listed for sale with realtor, Tracy Arnett;

b. The Property shall be listed for sale at a listing price as recommended by the realtor and the first reasonable offer to purchase shall be accepted;

c. It will be a term of the listing agreement that no commission will be payable if Mr. Bakker makes an offer that is accepted.

d. The Respondent, Bart Bakker’s consent to list and sell the property located at 62 Carlyle Avenue, Ottawa, Ontario, legally described as PT

5, PL 165776, Part 1, 5R9008, is dispensed with and the Applicant may Transfer the said property without the consent or signature of the Respondent, Bart Bakker;

e. The Respondent is declared to hold a portion of his equity in trust for the Applicant on account of expenses she has paid and will continue to pay, until the closing of the sale transaction, on the Respondent’s behalf relating to the property until further Order or agreement;

f. Upon the closing of the sale of the property located at 62 Carlyle Avenue, Ottawa, Ontario, legally described as PT LT 5, PL 165776, Part 1, 5R9008, the net proceeds of the sale shall be distributed as follows:

(i) The Applicant shall be entitled to a 60 percent share of the net proceeds of sale and the Respondent shall be entitled to 40 percent of the net proceeds of sale subject to the terms below.

g. A copy of this order shall be registered on title to the property within 5 days of its issuance;

h. A mandatory order requiring the Respondent to cooperate fully with all showings of the Property requested by the realtor, including:

(i) ensuring that the property has been cleaned and made presentable to perspective purchasers; and

(ii) vacating the premises to facilitate each showing.

7The balance of the relief claimed as in 1 (e) ii) and iii) of the application as well as the distribution referred to above is adjourned sine die for an accounting.

8## Costs

Costs: for oral reasons given, the applicant is entitled to her costs fixed at $6,000 inclusive of costs plus HST.

Honourable Mr. Justice Timothy Ray