Court File and Parties

Court File No.: 3982-17 Date: 2018-04-13 Superior Court of Justice - Ontario

Re: Donna Jubenville, Applicant And: Joseph Maione, Respondent

Before: Justice E. Gareau

Counsel: Paul E. Skeggs, Counsel for the Applicant

Heard: April 12, 2018

Endorsement

[1] The court heard the applicant’s motion at Tab 12 of the continuing record. In that motion the applicant seeks an order, inter alia, for the sale of the jointly owned home located at 115 Alexandra Street, Sault Ste. Marie, Ontario.

[2] The parties were not legally married. They resided together for some period of time as spouses. On March 26, 2004, the property located at 115 Alexandra Street, Sault Ste. Marie, Ontario was transferred into the joint names of Joseph Maione and Donna Jubenville by Instrument Number T446189. There was a mortgage registered against the property by the parties on January 4, 2008 in favour of the Royal Bank of Canada.

[3] The best evidence before the court is that the property is presently worth between $80,000 to $100,000. The evidence indicates that the balance owing on the mortgage in favour of the Royal Bank of Canada is presently $37,000.

[4] The respondent, Joseph Maione, presently resides in the home and has lived there since the parties separated in July 2016. It is the evidence of Mr. Mainoe that he has paid for all the expenses related to the home since separation and, in fact, while the parties cohabitated.

[5] The applicant wishes the jointly owned home sold. The respondent cannot offer to the court any sufficient reason why a sale should not be ordered. The respondent acknowledged that with the present interim support order in place of $700 per month, and the applicant’s refusal to sign the mortgage renewal on the home, that from a practical point of view he is unable to keep the home.

[6] Section 2 of the Partition Act, R.S.O. Chapter P.4 states that:

All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, 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.

[7] In considering the principles in an application under the Partition Act, the court is guided by the following comments of Perell J. in paras. 22-25 in Brienza v. Brienza, 2014 ONSC 6942, which states as follows:

22 Section 2 of the Partition Act states that a joint tenant or tenant in common may be compelled to make or suffer partition or sale. The general principles to determine when partition and sale should be granted were laid down in Davis v. Davis (1953), 1953 CanLII 148 (ON CA), [1954] O.R 23 (Ont. C.A.), where the Court of Appeal stated:

There continues to be a prima facie right of a joint tenant to partition of sale of lands. There is a corresponding obligation on a joint tenant to permit partition or sale, and finally the Court should compel such partition or sale if no sufficient reason appears why such an order should not be made.

23 The onus is on the party resisting partition or sale to demonstrate sufficient reasons for refusal

24 In cases after Davis, the Act has been interpreted to mean that the court has a very limited discretion to refuse an application for partition or sale.

25 Only in exceptional circumstances will a joint tenant or tenant in common be denied his or her request that the property be partitioned or sold. The court’s discretion to refuse partition and sale is narrow, and there must be malicious, vexatious or oppressive conduct to justify the refusal to grant partition and sale.

[8] On the evidence before me there are no “exceptional circumstances” or even a compelling reason to deny the applicant’s application for the sale of the property which she owns jointly with Joseph Maione.

[9] Accordingly, there shall be an order that the property located at 115 Alexandra Street, Sault Ste. Marie, Ontario be listed for sale and sold under the following conditions:

(a) That the property be listed with the realtor, Frank Naccarato of Century 21 Realty on a multiple listing basis;

(b) That the property be listed for sale at a price recommended by the listing agent, but not less than $85,000;

(c) That the parties execute all documentation required to list the property for sale;

(d) That the respondent, Joseph Maione, be entitled to possession of the property until sold and while in possession he shall be responsible for payment of the expenses related to the property;

(e) That any reasonable offer of purchase recommended to be accepted by the listing agent be accepted by the parties failing which either party may bring a motion to the court for the acceptance of such offer;

(f) From the sale proceeds the following payments are to be made:

(i) The outstanding mortgage in favour of the Royal Bank of Canada;

(ii) Real estate commission and HST; and

(iii) Legal fees, disbursements and HST on the sale of the property.

The remaining net sale proceeds after payment of the aforementioned expenses shall be paid into court to the credit of this action pending an agreement or order of the court as to the disposition of the proceeds between the parties.

[10] The respondent, Joseph Maione, has indicated that he wishes to advance a constructive trust argument for more than one half of the net sale proceeds for the house based on payments he alleges he made during the course of the relationship of the parties. There is nothing in the order that the court has made which prevents a constructive trust claim being advanced by Mr. Maione.

[11] With respect to costs of the motion at Tab 12 of the continuing record, if the applicant is seeking costs, her counsel shall advise the respondent accordingly and both parties are to serve and file written submissions as to costs no longer than five typed pages (excluding offers and bill of costs) with the court by 4:00 p.m. on April 27, 2018.

Gareau J.

Date: April 13, 2018