SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: FS-12-74069-00
DATE: 2013-06-25
RE: Czeslawa Piekarska v. Zdzislaw Piekarski and Boguslaw Piekarski
BEFORE: Fragomeni J.
COUNSEL:
Eva Iacobelli, for the Applicant
Olena Brusentsova, for the Respondent(s)
E N D O R S E M E N T
[1] This interim motion dealt with the following issues:
[2] On behalf of the Applicant wife, Czeslawa Piekarska:
• Striking the Respondents’ pleadings for non-compliance with three court Orders;
• Spousal support at $3,000 per month as of February 1, 2012;
• Child support for son Ireneusz (DOB. Nov. 26/90) based on imputed income of $100,000;
• Zdzislaw Piekarski contribute towards all Ireneusz’s s. 7 educational expenses on pro rata basis;
• Exclusive possession of matrimonial home and that the Respondents maintain costs of same;
• Balance of funds held in trust by Mr. Tufman paid forthwith for support and equalization;
• Restraining the Respondents from depleting or transferring property pending trial;
• The Respondent husband to obtain life insurance as security for support and designate the Applicant beneficiary;
• Restraining the Respondents from molesting, annoying or harassing Applicant and restraining Respondents from attending within 500 metres of Applicant or her residence;
• Police enforcement of the orders made.
[3] On behalf of the Respondent, Boguslaw Piekarski:
• List matrimonial home for sale under the Partition Act by May 31/13;
• Until sold, Applicant to be responsible for 25% of mortgage, property taxes and insurance;
• Allowing the Respondent husband to attend property to collect his personal belongings prior to sale;
• Real estate lawyer acting on sale to pay out of the proceeds – outstanding balances on mortgages, property taxes, real estate commissions and legal fees;
• Net proceeds of property divided 1/2 (Boguslaw), 1/4 (Czeslawa), 1/4 (Zdzislaw);
• Directing Mr. Tufman to release $24,000 to Respondents forthwith.
BACKGROUND FACTS
[4] The Applicant wife, hereinafter referred to as “the wife”, and the Respondent, Zdzislaw Piekarski, hereinafter referred to as “the husband”, were married on May 14, 1984. The Respondent, Boguslaw Piekarski, hereinafter referred to as “Boguslaw”, is the husband’s identical twin brother.
[5] The parties separated in September 2011. They have two children born of the marriage, namely Anna Piekarski born September 20, 1984 and Ireneusz Piekarski born November 26, 1990.
[6] The parties lived together in Poland from 1984 to 1990. Boguslaw immigrated to Canada in 1985 and the husband moved to Mississauga to work and lived with his brother in 1990. The wife remained in Poland with the two children until she and the children moved to Canada in December 2000.
[7] Boguslaw, the husbands’ twin brother, has always resided with the husband and wife at the matrimonial home at 3226 Lednier Terrace, Mississauga, Ontario.
I. LEDNIER TERRACE PROPERTY
[8] In about June 2000, the husband and Boguslaw bought a townhouse municipally known as 1168 Arena Road, Unit 52 in Mississauga for $193,000. Title to this property was in the name of both brothers as joint tenants, however, all of the down payment, transfer tax and legal expenses were paid by Boguslaw. The mortgage on the property was $163,331. The monthly mortgage payment of $1,356.99 was paid by the husband and Boguslaw equally.
[9] After the wife and the children moved to Canada and into the Arena Road townhouse, it was necessary to purchase a larger home.
[10] The Arena Road townhouse was sold on October 31, 2002 for $225,000. The net proceeds after sale was about $50,000. Of this amount $20,000 was used to pay the husband and wife’s credit card debit.
[11] Boguslaw’s share of the net proceeds was used as a down payment to purchase the Lednier Terrace property on November 11, 2002.
[12] The purchase price of the Lednier Terrace property was $326,000 with a mortgage of $300,735. Boguslaw put down $30,000 and $4,438.26 from a cashed RRSP on the purchase of this property.
[13] Title to the property was taken with Boguslaw having a 50% interest as a tenant in common and the husband and wife together having a 50% interest as joint tenants (25% each).
[14] Initially the parties agreed that the husband and wife and the children would live upstairs. Boguslaw would have a small bedroom downstairs, a washroom, a family room, and a kitchen.
[15] The current market value of the property is above $480,000. The total amount of all encumbrances registered on title is $270,000. Therefore, the equity in the home is at least $210,000.
Position of Boguslaw and Zdzislaw
[16] Boguslaw seeks an order that the matrimonial home be sold under the Partition Act. Boguslaw submits that the wife has no basis in law or fact to oppose the sale. Boguslaw submits that the facts are unique in a sense that the wife and her husband are only 50% joint tenants and it would be unfair to prevent him from realizing his interest in the property while his brother and his wife resolve or litigate their family issues.
[17] Boguslaw also alleges that shortly after the purchase, he was asked to move to the basement so the family could more easily access the backyard in exchange for $500 per month. The $500 was never paid and on this basis Boguslaw claims an occupation rent of 126 months at $500 per month for a total of $63,000.
[18] Boguslaw also claims in his cross-motion that until sold, the wife should pay 25% of the household expenses.
[19] Boguslaw seeks an order that after payment of the outstanding mortgage, taxes, commission, and legal fees, the net proceeds should be divided as follows:
50% to Boguslaw
25% to Zdzislaw
25% to Czeslawa
[20] Boguslaw also seeks an order that the remaining $24,000 presently being held in trust is to be released to him and his brother.
Position of Czeslawa
[21] The wife strongly opposes any order for the sale of the matrimonial home. The wife is seeking an order for exclusive possession. The wife is also seeking a vesting order placing the home solely in her name. In the alternative, if the Court will not grant a vesting order at this time, the wife seeks an order reserving that issue for the trial judge. The significant concerns raised by the wife relate to the sale of the home. The wife states that she cannot afford alternate accommodation. She has no independent means with which to support herself.
[22] The wife is concerned that if the home is sold and the husband moves back to Poland he will not pay any periodic amount for spousal support. The wife requires the security of the home for herself and her son. In this way she can rent out the basement that the brother now occupies which will assist her financially.
[23] The wife asserts that if the Court orders periodic support payments the husband will not pay. He has abused alcohol, is underemployed and has gambling issues. All of these concerns militate against a periodic support order. For these reasons the wife argues it is necessary to preserve the matrimonial home as security not only for spousal support payments but also for any equalization payment that may be ordered.
Analysis re: Matrimonial Home
[24] The wife points to the following factors in support of her position that she be granted exclusive possession of the matrimonial home and that it not be sold:
(a) the financial positions of both parties;
(b) the availability of other suitable and affordable accommodations;
(c) any violence committed by a spouse against the other spouse or the children.
(d) the Court has a discretion to order interim exclusive possession in favour of a spouse even when that spouse is not on title or when a third party, other than one of the spouses, is also on title.
(e) that where substantial rights relating to jointly owned property are likely to be jeopardized by an order for partition and sale, such an order should be deferred and the matter is decided under the FLA.
[25] The total equity in the home is about $210,000. On the basis of their respective ownership interests as set out on title, the equity would be allocated as follows:
Boguslaw - 50% = $105,000
The Wife - 25% = $52,500
The Husband - 25% = $52,500
[26] In Latcham v. Latcham, 2002 44960 (ON CA), 2002 CarswellOnt 1757 (C.A.), the Court dealt with the proper standard for the exercise of discretion to refuse partition under s. 2 of the Partition Act. At paras. 2 to 4, the Court stated:
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.
The Divisional Court concluded on the evidence that the appellant had not shown malicious, vexatious or oppressive conduct. We agree with that conclusion.
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.
[27] In Akman and Burshtein, 2009 CarswellOnt. 1941, Ferrier J. set out the following at paras 37 to 41:
[37] A joint owner of a property has a prima facie right to partition and sale pursuant to section 2 of the Partition Act. As the Court of Appeal noted in Latcham v. Latcham, the court can only refuse to order partition and sale of a jointly owned property where there is “malicious, vexatious or oppressive conduct. This narrow standard for the exercise of discretion flows from a joint owner’s prima facie right to partition.”: Section 2 of the Partition Act, R.S.O. 1990, c.P.4; Silva v. Silva, 1990 6718 (ON CA), 1990 Carswell Ont. 319 (C.A.) at paras. 15 and 16; Latcham v. Latcham, 2002 44960 (ON CA), 2002 Carswell Ont. 1757 (C.A.) at para. 2.
[38] Any allegation of malicious, vexatious, or oppressive conduct should relate to the partition and sale issue itself. Specifically, it is necessary to look at the reasonableness of the positions taken by the parties as it relates to the application for partition and sale. Osborne v. Myette, 2004 Carswell Ont. 3331 (S.C.J.) at para. 12.
[39] There is no evidence to suggest that the Applicant is acting oppressively, maliciously or vexatiously by asking to list the jointly owned Russell Hill home for sale.
[40] The only real issue is when the home will be sold, not whether it will be sold. One joint owner cannot compel the other to sell to him/her, but when the property is marketed, the owner wishing to keep the property can bid in the marketplace.
[41] The Respondent argues that under sec.34(1)(c) of the Act she may, as an incident to a support order, seek an order that the Applicant transfer property to her. That claim is open to her, but the Applicant has ample assets in the form of investments which could readily satisfy such a claim. In ordinary circumstances such as these, a property owner should be entitled to go to the market to achieve the value of his/her interest. If a property transfer is ordered at trial, (an unlikely event in this case) it can be done with other assets.
[28] In Miller v. Hawryn, 2010 CarswellOnt 8319, Greer J. stated at paras 21 to 25:
Based on the facts as I have set out in this Endorsement. I have determined that the Wife is entitled to the relief asked for in her Motion. An Order for the sale of the matrimonial home shall issue. I make such an Order for the reasons hereafter set out.
The home is jointly owned by the parties, and at law, either may bring on a Motion for Partition and Sale pursuant to s. 3(1) of the Partition Act, R.S.O. 1990. c.P.4. Our Court of Appeal in Davis v. Davis (1953), 1953 148 (ON CA), [1954] O.R. 23, [1954] 1 D.L.R. 827 (Ont. C.A.) notes that there continues to be a prima facie right of a joint tenant to partition or sale of lands. It also says that "...the Court should compel such partition or sale if no sufficient reason appears why such an order should not be made."
...
INTERIM ORDER TO ISSUE
That the matrimonial home situated at 3226 Lednier Terrance, Mississauga, Ontario, shall be listed for sale forthwith.
That the entire net proceeds from the sale of the matrimonial home shall be held in trust by the lawyer who has carriage of the sale. To be clear this net amount includes all amounts including the amounts that may be the subject matter of the respondent brother’s claim.
In the event that the parties cannot agree on the process to be followed in effecting the sale such as the listing agent, sale price, closing date, the parties may return this matter to court for directions.
Pending the sale of the matrimonial home the Respondents shall continue to pay the mortgage, insurance and property taxes.
That from the funds remaining in Mr. Marek Tufman’s trust account, the Consent order of April 19, 2013 relating to payment of the mortgage shall continue so that Mr. Tufman shall continue to make the mortgage payments. The sum of $12,000 from the funds being held by Mr. Tufman, representing the husband’s share shall be paid directly to the wife as allocation for spousal support. Any adjustments with respect to this payment to the wife is reserved to trial. I recognize that this order means that the brother’s share of these funds is solely being used to keep the mortgages in good standing and as such the trial judge can make the necessary adjustments to what is owed to the brother from the net proceeds of the sale of the matrimonial home that reflects the fact that his share of these funds is being depleted to ensure the mortgages do not go into default.
The Respondent husband shall pay the Applicant wife, the sum of $1,500.00 per month as interim spousal support commencing April 1, 2013. The issue of retroactivity and any adjustments to the amount is reserved to the trial judge. This sum reflects the fact that the order does not require the wife to contribute 25% of the mortgages, insurance and property taxes.
The sum of $12,000.00 paid to the wife from the proceeds being held by Mr. Tufman are allocated to these interim spousal support payments. Those funds will represent 8 months at $1,500.00 per month. In the event that these funds are exhausted prior to the home being sold or this matter being tried, the interim spousal support payments shall be made from the proceeds of the sale of the matrimonial home. Any adjustments are reserved to the trial judge.
The issue of child support for Ireneusz is reserved to the trial judge.
A restraining order shall issue restraining the Respondent husband from molesting, annoying or harassing the applicant.
Pending the trial of this matter the parties shall not deplete or transfer any property in their respective names.
The motion to strike the Respondent husband’s pleadings is dismissed.
All other issues are reserved to the trial judge.
The parties shall file written submissions on costs within 30 days.
Fragomeni J.
DATE: June 25, 2013
COURT FILE NO.: FS-12-74069-00
DATE: 2013-06-25
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Czeslawa Piekarska v. Zdzislaw Piekarski and Boguslaw Piekarski
BEFORE: Fragomeni J.
COUNSEL: Eva Iacobelli, for the Applicant
Olena Brusentsova, for the Respondent(s)
ENDORSEMENT
Fragomeni J.
DATE: June 25, 2013