Court File and Parties

Citation: Allard v. Sylvain-Allard, 2015 ONSC 2052 Court File No.: 35/38/013521/13 (Sarnia) Date: 2015/03/30 Superior Court of Justice – Ontario

Re: Marc Richard Jean Marie Allard (Applicant) And: Johanne Marie Lise Sylvain-Allard (Respondent)

Before: Justice B.W. Miller

Counsel: George F. McFadyen, for the applicant Nancy M. Pringle, for the respondent

Heard: March 12, 2015

Endorsement

[1] This is the Respondent’s interlocutory motion for partition and sale of matrimonial property: two family cottages with civic addresses of 118 Promenade du lac Nipissing, Sturgeon Falls, Ontario (“118”) and 101B LaBrosse Road, Verner, Ontario (“101B”). The Applicant resists the motion on the basis that: (1) the Respondent has not proceeded under the correct statute and the court therefore lacks jurisdiction to grant the order sought, and (2) after an equalization of net family property at trial, the Applicant will be in a position to buy out the Respondent’s interest in both cottages, so the motion is premature and unnecessary.

[2] The Respondent is employed as a school principal and is paying the Applicant interim spousal support. Over the course of the marriage, the Applicant had been working as a bakery manager, but took a voluntary severance package prior to separation. The Applicant owns the matrimonial home, where he resides. He also rents out a portion of it and receives rents from a residential income property that he owns. The Respondent rents accommodation where she lives with the daughter of the marriage.

[3] The Applicant is paying child support, which is set-off against the spousal support that he receives.

[4] It is disputed whether the Applicant uses the cottages as income properties. He claims to use them both personally. I cannot make any findings as to the use of the cottages on the evidence before me. Neither party has suggested that either of the cottages qualify as a matrimonial home, and there is no evidence before me that would support such a finding.

[5] The Respondent does not use either cottage and they seem to have significance for the Applicant alone. He has a close attachment to the region and his family reside nearby. He has been maintaining both cottages himself and paying the mortgages from his severance pay.

[6] The Respondent wants to sell the cottages as she derives no benefit from them and wants to be paid out. She does not want to wait until trial and, in any event, is opposed to selling her interest to the Applicant.

[7] Counsel for the Respondent rightly conceded at the hearing of the motion that the forced sale provisions in s. 10 of the Family Law Act have no application here. On the evidence before me, neither the ownership of the properties nor a right to possession is in issue.

[8] The notice of motion did not specifically state that relief was sought under the Partition Act, RSO 1990, c P.4. However, the notice of motion tracked the language of the Partition Act, and the Respondent’s supporting affidavit stated that the Respondent was asserting her ‘rights under the Partition Act.’ The Applicant, through his counsel, takes the position that unless that statute is specifically pleaded, the court cannot grant relief under it. I was directed to no authority for the proposition that the Partition Act must be specifically pleaded and I find that the Respondent’s pleadings are not a bar to the relief sought. There is no unfairness here; counsel was not taken unawares. Counsel for the Applicant came prepared to argue the motion on the basis of the Partition Act and did not suggest that there was any additional evidence that the Applicant would have filed had the Notice of Motion specifically pleaded the Partition Act.

[9] Section 2 of the Partition Act provides:

All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the courtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, 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.

[10] Under the Partition Act, a joint owner has a prima facie right to partition and sale. The discretion to refuse the application is narrow: it is limited to those circumstances where the application is vexatious, malicious, or oppressive (Batler v. Batler (1988), 1988 4726 (ON SC), 67 O.R. (2d) 355 (Gen. Div.) at 358 and Latcham v. Latcham, 2002 44960 (ONCA) para. 2). The court ‘is required to compel such partition or sale if no sufficient reason can be shown why such an order should not be made.’ (Afolabi v. Fala, 2014 ONSC 1713 para. 27).

[11] The onus is on the party resisting partition or sale, in this case the Applicant, to demonstrate that a forced sale would be vexatious, malicious, or cause hardship amounting to oppression to the joint tenant (Bailey v. Rhoden, 2008 42427 (ONSC)).

[12] At the very least, if the Applicant contends that the dispossession of the cottages should be deferred to trial, he bears the burden of establishing that there is a genuine issue for trial, whether it be an issue related to the exercise of the court’s discretion, or some issue in the family litigation that must be resolved before partition and sale should be considered (Afolabi v. Fala, 2014 ONSC 1713, para. 50).

[13] The Applicant has not demonstrated a genuine issue that must be deferred to trial. The fact that he may or may not be in a position, after equalization, to buy out the Respondent’s interest in the cottages does not create a genuine issue for trial with respect to determining whether the court should exercise its discretion to deny partition and sale under the Partition Act. This is not a case where, for example, sale of the property would deprive the custodial parent and children of their home with no means to secure alternative accommodation (as would have been the case in Colosimo v. Colosimo (2012 ONSC 162). Neither is the evidence of the Applicant’s personal attachment to the cottages sufficient to raise a triable issue: there is always hardship when one party is compelled to sell against their will, but this, without more, does not make the application oppressive (Bailey v. Rhoden, para 28). On the evidence before me, then, there has been no vexatious, malicious, or oppressive conduct that would justify an exercise of the Court’s discretion to refuse partition and sale.

[14] Accordingly, and subject to any agreement to the contrary that the parties are able to make:

a. The cottages are ordered to be listed for sale by May 1, 2015.

b. The Applicant shall have conduct of sale of 101B and the Respondent shall have conduct of sale of 118.

c. 118 shall be listed for sale at $210,000.

d. 101B shall be listed for sale at $300,000.

e. Each cottage is to be listed for sale with an experienced sales person at a recognized real estate broker.

f. Both parties shall cooperate to do all things and execute all documents necessary to complete the sale of the cottages. If either party requires further direction from the court to compel the cooperation of the other, either party may bring a motion on notice to the other party.

g. Upon the sale of each cottage and payment of all encumbrances, expenses, real estate commissions and legal fees to a third party real estate lawyer, the net proceeds of sale shall be paid into court pending the trial or resolution of the remaining issues.

[15] The Respondent shall have costs of the motion fixed at $500 inclusive of HST and disbursements.

Justice B.W. Miller Date: March 30, 2015