ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11435939
DATE: 20130706
BETWEEN:
SAEID BADII
Plaintiff
– and –
FARIBA BADIE
Defendant
Leora Wise, for the Plaintiff
Not represented Default Judgment issued against her on October 22, 2012
HEARD: JUNE 26, 2013
judgment and orders: Greer j.:
[1]
Background
The Plaintiff, Saeid Badii (“Saeid”) and his sister, the Respondent, Fariba Badie (“Fariba”), are the registered owners of a property known as 8 Hillcrest Avenue, Apt. 2516, Toronto. The property was purchased by way of an Agreement of Purchase and Sale dated May 17, 2004, signed by Saeid and his mother, Maliheh Badiei (“Maliheh”) with a down payment of $8,000. Saeid says the money for the down payment came from her. The original purchase price was $298,000, on the closing date of the sale, June 30, 2004. On June 24, 2004, when TD Canada Trust provided a mortgage commitment, the borrowers are shown as Saeid Badii and Fariba Badie, with the mortgage principal being $193,700, for 5 years at 3.05%. The Deed was registered in the names of Saeid and Fariba. A second mortgage was registered on December 1, 2007 with TD Canada Trust for $69,000 with them shown again as the Mortgagees.
2Saeid now moves for Partition and Sale of the property and for a host of other heads of relief in his Amended Notice of Motion. It is his evidence in his Affidavit sworn June 7, 2013 that his sister Fariba never lived in Canada. She lives in Tehran, Iran. He says his mother, Maliheh had been living in the U.S.A. with his brother, Mehrdad, and moved to Canada in 1999 to live in Toronto, off and on, until she returned to Iran in April 2009. During that period, Saeid says his Mother looked after Fariba’s 2 sons who were going to school in Toronto.
3Saeid says that since his Mother did not speak English, when the purchase of the property was made, she asked him to hold her interest in trust for her. There is no Trust Agreement or any document which proves this. The Mother, Maliheh, has filed no Affidavit which supports any of Saeid’s evidence. He says the Mother asked Fariba to hold her interest with Saeid in trust for her also. Again, there is no supporting evidence to prove this statement. The property, as registered, is in the names of Saeid and Fariba as tenants-in-common. He says he and his Mother and brother made the following contributions to the down payment:
(a) Saeid - $14,055.11
(b) Maliheh - $46,101.00
(c) Mehrdad - $40,380.80
4Some of the documentation respecting various payments is in Farsi and Saeid has made his own translations of it. Since these have not been translated by a Court Certified Translator from Farsi to English, they are not properly before the Court.
5Saeid says Mother live in the property from January 1, 2005 until April 2009, when she returned to Iran.
6I am satisfied on the accounting evidence that Saeid made all the mortgage payments during the period it was not rented, and that he collected the rent when the property was leased or rented after April 2009 and paid all the expenses.
7There is no evidence that Fariba ever occupied the property except for perhaps a few weeks when she came from Tehran to visit her sons. Fariba did not contribute anything towards the down payment, the mortgages or towards any other operating expenses of the property, which is a condominium.
8Saeid wants to sell the property. Fariba was served with the Statement of Claim and she did not respond. She was noted in default on October 22, 2012.
9Under the Partition Act, R.S.O. 1990, c. P.4, S.2 (“the Act”) says that, inter alia, tenants in common to 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 or equitable only.” Saeid has the right to bring on this Motion pursuant to S.3(1) of the Act.
10I am satisfied that Fariba was properly served with the Statement of Claim dated September 27, 2011. It was validated as of April 25, 2012 by Order of Master Abraham dated October 19, 2012. Saeid has properly brought on his action under the Act.
11It has been held in Greenbanktree Power Corp. v. Coinamatic Canada Inc. (2004), 2004 48652 (ON CA), 75 O.R. (3d) 478 (C.A.) in paras. 1-3, that tenants in common have a prima facie right to compel partition or sale. Co-tenants should only be deprived of this statutory right where the party requesting partition has acted vexatiously, oppressively or with malice. This is not the case before me. There is no need for the Trial of any issue.
12Since Fariba made no payments on the mortgages, she is not entitled to any capital increase in the value of the property. See: Barker v. Barker 2010 CarswellOnt 895 (S.C.J.) paras. 67-68.
13Saeid made all payments where the property was improved or decorated or repaired. He is therefore entitled to recover all his payments from the net proceeds. See: Sliwin v. Tishbi 2003 CarswellOnt 6480 (S.C.J.) para. 37. See also: Para 22(e) of his Affidavit.
14Saeid says that had Fariba not asked for money, he would not have borrowed the money for the second mortgage against the property. He asks the Court to award him a Judgment against Fariba in the sum of $23,018.41 (being $18,531.76 for the loan plus interest of $4,436.65). This Claim is made in Para. 1(e) of his Statement of Claim. Rule 5.01(1) allows a plaintiff to join any claims the plaintiff has against the opposite party.
15In the circumstances of this case, I see no need to split the claim and no need to order it transferred to Small Claims Court. See: Small Claims Court Rules, O. Reg. 258/98, Rule 6.02. Fariba is already noted in default so she is aware that the Court may make an Order against her if the evidence supports it. See: paras. 24-27 of Saeid’s Affidavit.
16Saeid hopes to sell the property in September 2013. He has had two valuations done and both put the value at approximately $500,000.
[17]
Disposition
In the Notice of Motion filed, Saeid asked for the partition and sale of the lands which I now Order. He asks for Judgment in his favour in the sum of $151,699.41 from the net proceeds of the sale of the property. He further asks that the Judgment state that Fariba is not entitled to any of the net proceeds from the sale of the property.
18In his Amended Factum, however, he sets out additional relief in paragraph 1, subparagraphs (a) to (i) thereof. Then, on p. 18 of that Factum, he sets out a list of Orders, which now incorporates both the Statement of Claim and other relief sought. Using this latter list, I make the following Orders and Judgment:
I make no declaration that the parties hold their interest in trust for Maliheh. There is no evidence of a trust agreement at the date of the purchase.
I make no Order that all inquiries be made re: Schedule “A”. There is no Schedule “A” attached.
An Order shall go, pursuant to the Act, that the lands in question municipally known as 8 Hillcrest Avenue, Apartment 2516, Toronto, be sold free of claims of encumbrancers. From the gross proceeds of sale, the following amounts and/or encumbrances shall be paid on closing:
(a) payment of the existing first mortgage of which TD Canada Trust is the first mortgagee.
(b) payment of the existing line of credit secured by a second mortgage of which TD Canada Trust is the second mortgagee.
(c) payment of all the usual closing adjustments including realty taxes, utilities and insurance, if any, and real estate commission.
(d) payment of the vendors’ usual closing legal fees and disbursements.
(e) Order to go that the fees of Wise & Associates be fixed at $37,648.29 inclusive of HST and disbursement, on a substantial indemnity basis, as set out in their Bill of Costs certified by Leora Wise, June 25, 2013, which I have reviewed and found reasonable in these circumstances for all proceedings except the sale.
(f) After the above amounts have been deducted, pay to Saeid Badii the following sums and Judgment to issue accordingly,
(i) The sum of $14,055.11 as his part of the down payment plus
(ii) The sum of $112,834.89 for all carrying costs of $198,630.89 less rent received of $85,796.00.
TOTAL - $126,890.00
(g) Pay to Saeid Badii the sum of $23,018.41 being the money plus interest he lent to Fariba, which was never repaid by her.
(h) I am not prepared to deal with the Agreements and Trust Agreements executed by Maliheh Badiei on September 16, 2011 and Mehrdad on June 6, 2013, respecting what each says she or he contributed to the down payment of the property. Neither is a party to the proceeding, nor did the move to be added as third parties. Their claims will have to be brought on separately against Saeid and Fariba with respect to the balance of the net proceeds which I Order be paid into Court to the Accountant of the Superior Court of Justice to the credit of this Action. Trust Agreements cannot be executed subsequent to the actual Trust being made. There is no evidence of a Trust in the title documents.
- There is no evidence before me that Fariba paid any money towards the down payment of the property, so an Order shall go that her signature be dispensed with on an Agreement of Purchase and Sale and any listing agreement of the property, and on any other documents, which may be required to Close the Sale of the property and to have the Judgment and Orders issued.
19All Orders and Judgment to go accordingly.
Greer J.
Released: July 6, 2013
COURT FILE NO.: CV-11435939
DATE: 20130706
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SAEID BADII
Plaintiff
– and –
FARIBA BADIE
Defendant
JUDGMENT AND ORDERS
Greer J.
Released: July 6, 2013