COURT FILE NO.: FS17-5461
DATE: 20180404
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: P.C. v. C.C.
BEFORE: Justice C.J. Conlan
COUNSEL: Mr. Robert Scriven, for the Applicant, P.C.
Mr. Paul Parlee, for the Respondent, C.C.
ENDORSEMENT ON MOTION
Conlan J.
The Motion
[1] The Applicant wife, P.C., moves for an Order for partition and sale of the matrimonial home and farm property located in Walkerton, Ontario.
[2] P.C. relies on the provisions of the Partition Act, R.S.O. 1990, c. P.4, as amended, and the Family Law Act, R.S.O. 1990, c. F.3, as amended.
[3] Section 2 of the Partition Act provides that a tenant in common, in this case the Respondent husband C.C., may be compelled to suffer the partition and sale of real property.
[4] Section 10(1)(c) of the Family Law Act expressly allows P.C. to apply to the Court for the Order that she seeks.
[5] C.C. opposes the Order sought and has offered to pay to P.C. $470,000.00 as an advance on any equalization payment owing to her.
The Salient Facts
[6] Previously as joint tenants, the parties now own the subject property as tenants in common.
[7] In her Affidavit evidence, P.C. states that she seeks the Order for partition and sale of the property so that she can leave and purchase her own residence. Both parties have remained on the property since they separated in May 2016.
[8] The parties’ 19-year old daughter lives at the property. The young lady is completing an apprenticeship in Dairy Herd Management through the University of Guelph. She owns some 25 head of cattle which are situated on the property. There is also a pig barn on the property, and C.C. is responsible for about 680 pigs that are owned by a third party. There are crops that have been planted, and there are approximately forty acres of wheat on the property.
[9] The parties agree, based on an appraisal obtained by P.C., that the property in question is worth $1,395,000.00. There is no dispute that there exists a relatively small mortgage against the property in an amount less than $100,000.00.
[10] Neither party has a firm calculation of what the equalization payment owing to P.C. will be, although C.C. has attempted to provide his best evidence on the figures known to date. His Affidavit evidence includes an equalization calculation which forms the basis of his offer to pay the advance noted above.
[11] This proceeding is not one that has lingered, the Application having been commenced in November 2017.
The Jurisprudence
[12] There is no doubt that this Court has discretion to refuse to grant the Order being sought by P.C., but the parties disagree on how wide that discretion is.
[13] Relying upon three cases including, in particular, Cudmore v. Cudmore, [1997] O.J. No. 847, a decision of Justice Granger of the Ontario Court of Justice (General Division), specifically paragraph 16 of that decision, P.C. submits that her request should be granted unless this Court concludes that she has some malicious, oppressive or vexatious intent.
[14] I agree with Mr. Scriven that the Cudmore, supra decision is a leading authority on the test for the granting of partition and sale of real property in the context of matrimonial litigation, however, in my view, P.C.’s position restricts too narrowly this Court’s discretion to refuse such an Order. Cudmore, supra must be read in its entirety. At the end of the day, the facts must be found to justify the sale of the property in question.
[15] I am of the opinion that the facts may not justify the sale of the property in question where the sale will create an oppressive result, regardless of whether the moving party’s intent can be called into question.
Conclusion
[16] After careful reflection, I have concluded that the Motion must be dismissed.
[17] P.C. had a good faith basis for bringing the Motion, however, her stated objective (to move away and purchase her own residence) can be met by the alternative being offered by C.C. It is a substantial amount of money, especially in this area. It will be paid without delay.
[18] That alternative has the advantage of not forcing C.C. and the parties’ daughter off the property. That alternative has the advantage of not risking any disruption to the young lady’s apprenticeship. That alternative has the advantage of not having to deal with the cattle, the pigs, and the crops.
[19] An immediate sale of the property would be oppressive, in my view. And unnecessarily so, in light of the alternative being offered.
[20] P.C.’s Motion is dismissed. Within thirty days of today, C.C. shall pay to P.C., as an advance on the equalization payment owing to her, the sum of $470,000.00. The remaining terms set out in the document filed by counsel for C.C., none of which is seriously contested by the moving party, shall apply.
Conlan, J.
DATE: April 4, 2018
COURT FILE NO.: FS17-5461
DATE: 20180404
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: P.C. v. C.C.
BEFORE: Justice C.J. Conlan
COUNSEL: Mr. Robert Scriven, for the Applicant
Mr. Paul Parlee, for the Respondent
ENDORSEMENT ON MOTION
Conlan, J.
DATE: April 4, 2018