ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C-14-1086
DATE: 2015-09-16
BETWEEN:
Loree-Stroeder, in her capacity as Estate Trustee of the Estate of Kenneth James Stroeder
Applicant
– and –
Beverly Stroeder, also known as Beverely Stroeder
Respondent
Jennifer M. Krotz - Counsel for the Applicant
Mark A. Radulescu - Counsel for the Respondent
HEARD: September 15, 2015
The Honourable Justice James W. Sloan
[1] Kenneth Stroeder died on August 23, 2014 and the applicant is his widow and Estate Trustee.
[2] He was married to the respondent but they separated on June 30, 1998, over 17 years ago and they were divorced July 18, 2007, over 7 years ago.
[3] Since separation, the respondent has remained living in the matrimonial home at 112 Cedar Street in Kitchener. This home was purchased in joint tenancy with proceeds from an earlier matrimonial home.
[4] After having his lawyer write the respondent about having his interest bought out of the former matrimonial home, and after not receiving a reply, the deceased had his lawyer sever the joint tenancy on October 27, 2008.
[5] The respondent rented out part of the home and except for two months, she kept all the rent.
[6] Since July 2007, on her evidence this would have amounted to over $38,400 and one of the tenants, who is her son, also pays for all the hydro.
[7] In his will, the deceased left his interest in the former matrimonial home to his Estate Trustee in trust for their 16 year old daughter. She will turning 18 in March of 2017 and could demand her share of the estate at that time, rather than waiting until she is 21. Of course, this money could be used to pay for her university education.
[8] This Partition Application was brought, because the parties could not agree on the sale of the property.
[9] In essence, the respondent claims that if the home is sold she will suffer a hardship akin to oppression and that therefore the court should exercise its discretion and refuse the sale of the home at this time.
[10] The home is worth between $225,000 and $265,000. The mortgage was paid off when the deceased passed away because there was mortgage insurance.
[11] Therefore, if the property is sold, each party would receive in excess of $100,000.
[12] The respondent claims that the property is well suited to her disabilities. Nothing could be further from the truth. She is morbidly obese and has very significant problems trying to walk with a walker. She had a great deal of difficulty ascending one step into the witness box.
[13] In addition, she suffers from debilitating arthritis, fibromyalgia, Bell’s palsy and has cataracts in both eyes.
[14] The home in question is two stories and her son rents the upper floor.
[15] To get to the “ground floor” from street level there are 3 steps and since there is no washroom on the ground floor, the respondent must descend at least six steps to the basement to go to the washroom or do laundry.
[16] It is hard to conceive of a more inappropriate home for the respondent to live in as opposed to an apartment/condominium with an elevator.
[17] The respondent has not done any research to look at alternate accommodation and has not looked into any type of assisted living. If she rented a two bedroom apartment for between $800 - $1,000/month and her son moved into one bedroom she would be better off financially, not to mention the physical benefits to her of living on one floor.
[18] Her monthly income will be switching from ODSP now that she is 65 and onto CPP and OAS. She has not confirmed what she will be getting but thinks it will be just over $1,000. She has not looked into what other supplements or assistance she may be able to get.
[19] She has $3,400 in the bank and some type of investment account valued at approximately $34,000 which pays her $400/year. She has not looked into whether she can get more per year from this account.
[20] If the subject property is sold she will also have further monies in excess of $100,000.
[21] If she and her son share rent of $1,000/month and if the $100,000 is not invested it would pay her share of the rent for approximately 17 years.
[22] That would leave her CPP, OAS and other money for food, clothing etc.
[23] She would not have realty taxes to pay, her tenant insurance would be much lower, and she would not have the maintenance that owning a house entails.
[24] In fact, on the evidence before me, the costs of running the subject property for reality taxes, insurance, hydro, water/gas, HVAC, and water softener alone would be $1,093/month without taking into account maintenance expenses.
[25] On the facts of this case, I find that the respondent will not suffer much if any hardship and certainly nothing approaching oppression.
[26] Therefore, unless the parties agree otherwise, the subject property shall be listed for sale within 10 days on an MLS basis.
[27] The Respondent shall be allowed to remain living in the home so long as she and her tenants keep the home clean and neat for showing purposes as directed by the listing agent and they co-operate with the listing agent to allow the home to be shown at all reasonable times.
[28] Unless the parties agree otherwise, the net proceeds from the sale shall be paid into the trust account of Clarke L. Melville to be released on the written consent of the parties or further court order.
[29] I will remain seized of this matter. Therefore, if the parties are unable to agree on any aspect of the sale or division of proceeds, including the listing price or a real estate agent, or acceptance of an offer, etc. I will decide those matter on motion brought before me.
[30] If the parties are unable to agree on costs, Ms. Krotz shall forward her brief submissions on costs to me by September 23/15. Mr. Radulescu shall forward his brief response to me by September 28/15. Ms. Krotz shall then forward her reply, if any, to me by September 30/15. Cost submissions may be sent to my attention by email, care of Kitchener.Superior.Court@ontario.ca.
James W. Sloan
Released: September 16, 2015
COURT FILE NO.: C-14-1086
DATE: 2015-09-16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Loree-Stroeder, in her capacity as Estate Trustee of the Estate of Kenneth James Stroeder
Applicant
– and –
Beverly Stroeder, also known as Beverely Stroeder
Respondent
REASONS FOR JUDGMENT
J.W. Sloan
Released: September 16, 2015