SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 14-60523
DATE: August 19th, 2014

In the matter of the Partition Act, R.S.O., 1990, c. P.4

RE: PASCALE VAUDRIN, Plaintiff

AND:

GLENN CARON, Defendant

BEFORE: MASTER MACLEOD

APPEARING:

Dave Morin-Pelletier, for the Plaintiff

Glenn Caron, in person

HEARD: August 19th, 2014

ENDORSEMENT

[1] This is a motion for summary judgment in an action under the Partition Act. The plaintiff and the defendant are joint owners of residential property located in the City of Clarence-Rockland.

[2] The parties were at one time involved romantically and were co-habiting but they separated in January of this year and since that time the defendant has been residing in the property. In April of 2014 the plaintiff commenced this action for partition and sale and in May of 2014 she severed the joint tenancy. To date the defendant has refused to vacate the property or to list the property for sale. He filed a defence and counterclaim.

[3] This motion for summary judgment was launched on June 23, 2014 and immediately served upon the defendant. In the notice of motion, the plaintiff seeks an order for sale, an order for possession and an order for unequal division of the proceeds of sale due to various amounts she asserts she invested in the property or expenses which she says she has incurred. The plaintiff asserts that she contributed $154,327.31 to the acquisition and improvement of the property. The defendant has not served responding materials to this motion.

[4] Mr. Caron attended court today and requested an adjournment. The reason he gave for the adjournment request was that he had dental surgery this morning and was feeling slightly confused and unsteady. Despite this he was able to articulate his position clearly and in any event the dental surgery could not explain his failure to file responding material.

[5] Mr. Caron made it clear that he was not opposed to sale of the property and that he recognizes many of the adjustments proposed by the plaintiff but he also has some adjustments of his own. Moreover he would prefer to use a service such as “Grapevine” rather than a full service real estate broker to list the property. Both parties believe there is substantial equity in the property which is now worth around $400,000.00.

[6] I refused the adjournment but in fairness to Mr. Caron notwithstanding his failure to file responding materials, I have not granted a monetary judgment or otherwise dealt with the adjustments. It was primarily the minutiae of the adjustments he felt incapable of dealing with today and in any event such adjustments are more appropriately dealt with by way of reference under Rule 20.04 (3). Rather than assign unilateral carriage and control of the sale to the plaintiff I have provided for a court supervised sale under s. 3 (1) of the Partition Act. Ultimately both Mr. Caron and the plaintiff agreed that this was an appropriate disposition.

[7] The plaintiff seeks an order for possession of the property and an order that the defendant move to rental accommodation. She agrees in that case to take over responsibility for the mortgage until the sale is completed. She presented evidence that the defendant was not keeping the property tidy and presentable and alleges that he will attempt to thwart the sale if left in occupation. Mr. Caron disputes this though of course he has not filed any affidavit material. In any event he argues that he requires time to find alternative accommodation and that he has children of his own who are in his care from time to time and would be affected by any such order. He asks for 90 days to find alternative accommodation.

[8] On the issue of the listing agent, there is nothing wrong with the agent proposed by the plaintiff who appears to be well qualified. Though Mr. Caron would prefer to pay a lower commission or no commission, he recognizes that a service such as Grapevine is actually a “do it yourself” service which would require a level of involvement and co-operation by the parties. He is content that an order be made for listing with the proposed agent provided the listing agreement is short term and can be reviewed if no offer is obtained that is satisfactory to both parties. Mr. Caron confirms he has been paying the mortgage payments of approximately $1200.00 per month.

[9] In conclusion, the court orders as follows:

a. The defendant’s request to adjourn the motion is denied.

b. The court grants summary judgment for partition and sale. The property described in the notice of motion shall be sold under court supervision and I will remain seized of the conduct of the sale.

c. The defendant shall vacate the property no later than November 21st, 2014 or such other date as may be ordered or agreed. In particular the date may be advanced if the defendant fails to fully co-operate with efforts to sell the property or fails to abide by any of the terms of this order.

d. The plaintiff may take possession of the property on November 21st, 2014 or such other date as may be established under the preceding paragraph and if necessary may enforce this judgment by obtaining a writ of possession. Upon taking possession of the property, the plaintiff will assume responsibility for payment of the mortgage and shall keep it in good standing pending the sale of the property.

e. In the interim the defendant is to keep the property tidy, presentable and in good repair and is to fully co-operate with the real estate agent and with the plaintiff. The plaintiff may have reasonable access to the property on reasonable notice to verify the condition of the property or to assist the real estate agent with showing of the property.

f. The property may be listed for sale with Richard Chartier at Coldwell Banker First Ottawa Realty Brokerage or such other agent as may be ordered or agreed with the initial listing period not to exceed 60 days. The listing price shall be $415,000.00 or such other price as may be ordered or agreed.

g. The parties are to execute the listing agreement but if they cannot agree then the agreement may be submitted for approval by the court. Similarly if the parties cannot agree on a reduction of the listing price or acceptance of an offer they may obtain further directions from the court.

h. Approval of an offer or further directions in regard to the sale may be obtained by e-mail addressed to my attention at mastersofficeottawa@ontario.ca with a copy to each of the parties. The defendant may be served at glennlcaron@gmail.com and the plaintiff through her counsel at dpelletier@sicotte.ca .

i. Approval is not required if both parties consent and execute the necessary documents. Should it appear impractical to approve any step by e-mail and it appears to the court that a hearing is required then further direction will be provided.

j. There will be a reference to the master to determine entitlement to the net proceeds of sale and the adjustments sought by each of the parties. The plaintiff shall have carriage of the reference and shall make an appointment for a hearing for directions. The hearing may take place by conference call if both parties wish.

k. In the interim, the defendant shall set out clearly which of the expenses or expenditures incurred by the plaintiff he accepts as accurate and what claims of his own he is making. This document shall be available at the hearing for directions.

l. The costs of this motion are reserved and will be dealt with as one of the adjustments claimed against the net proceeds of sale.

Master MacLeod