Court File and Parties
COURT FILE NO.: CV-17-571391 DATE: 20170601 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Khurshid Katal and Bushra Katal, Applicants – AND – Noshaba Khurshid, Respondent
BEFORE: E.M. Morgan J.
COUNSEL: Tajinder Kaur Sivia, for the Applicants Noshaba Khurshid, in person
HEARD: June 1, 2017
Endorsement
[1] The Applicants as joint tenants are 99% owners of a condominium unit at 2217 Weston Road, Unit 50, Toronto (the “Property”). They live there with their daughter, the Respondent, and her children. The Respondent has a 1% interest in the Property.
[2] The Applicants are elderly and in poor health. They wish to sell the Property to move to more affordable accommodations. They bring this Application under the Partition Act, RSO 1990, c. P.4 for an order directing that the Property be sold.
[3] The Respondent opposes the Application. She is a single mother who uprooted herself and her family to move to the Property with her parents and who helped them qualify for a mortgage on the Property. It appears that while the Applicants pay the monthly mortgage payments, condominium fees and property taxes, the Respondent pays most of the utility and upkeep expenses for the Property.
[4] Each of the parties submits that they will suffer some personal hardship if the other side gets their way. The Respondent is particularly concerned that her son is starting university this fall, and she does not want to move houses at a time when he should be getting settled into his new studies. For their part, the Applicants are concerned that carrying the mortgage is too much of a financial burden for them to continue to bear; in addition, they both have heart conditions and are anxious to move to a residence which has fewer stairs to climb than their current house at the Property.
[5] Under the Partition Act, “(1) a person who holds lands as a joint tenant, tenant in common or coparcener has a prima facie right to partition or sale of them at any time; (2) there is a corresponding obligation on the other owner or owners to submit to partition; (3) the Court should grant partition for sale, if asked for, unless sufficient reason appears for not doing so”: Davis v. Davis. The court’s discretion in refusing this prima facie right is narrow, and the onus is on the party seeking to resist partition to demonstrate that the application is a result of malicious, vexatious, or oppressive conduct: Silva v. Bettencourt, [2002] OJ No 1878 (SCJ).
[6] In ordering partition and sale, the court can dispense with one co-owner’s consent to the sale if that co-owner is withholding their consent unreasonably: Miller v. Miller, 2016 ONSC 3027. Of course, the sale of any property in such circumstances must be at a price that reflects fair market value.
[7] Under Rule 55.06(1) of the Rules of Civil Procedure, a sale pursuant to a partition order can be done by public auction or by private contract. A private contract sale is most frequently accomplished by listing the property for sale with a licensed real estate brokerage and offering the property for sale to the public at the then current market price.
[8] I see no oppressive conduct here on the Applicants’ part that would justify the position taken by the Respondent. They have good reason to want to sell the Property and are the 99% owners of it. They can reasonably expect to be able to sell it at this stage of their lives. While I sympathize with the Respondent in that she will have to move to a new home with her family, she will get the value out of the 1% interest once the Property is sold. It is now the spring, and hopefully the sale can be done prior to her son starting university in the fall.
[9] There shall be an order that the following land be sold:
PART OF LOTS 16 AND 17, PLAN 5 DESIGNATED AS PARTS 50 AND 120, PLAN 66R21424; S/T AN EASEMENT OVER PART 50, PLAN 66R21424, AS AT767525; S/T AN EASEMENT OVER PART 120, PLAN 66R21424, AS AT682962; CITY OF TORONTO; T/W AN UNDIVIDED COMMON INTEREST IN TORONTO COMMON ELEMENTS CONDOMINIUM CORPORATION NO. 1692: S/T AN EASEMENT AS IN AT1113058.
Property Identification Number 10320-0550 LT, municipally known as 2217 Weston Road, Unit 50, Toronto, Ontario M9N 4A1.
[10] The sale shall be by private contract, by listing the Property with a realtor licensed in the Province of Ontario. The Respondent’s consent and signatures for the sale shall be dispensed with.
[11] The Applicants have sought costs of this Application. Although the Respondent has not established the type of oppressive conduct on the Applicants’ part to counter their prima facie right to partition and sale, there is no doubt that the process has caused, and will continue to cause, a great deal of personal upset and inconvenience to the Respondent and her children. The Applicants are effectively forcing their daughter and grandchildren to leave their home; they appear indifferent to that consequence.
[12] Costs are a discretionary matter under section 131 of the Courts of Justice Act, and here I am inclined to exercise my discretion not to award any costs at all. The Applicants are within their rights on the merits of the Application, but I do not want this ruling to add any more to the Respondent’s difficulties than is absolutely necessary.