COURT FILE NO.: CV-18-593162

DATE: 2018-05-09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Patricia Nancy Nobrega and Janet Elder, Applicants

AND:

Patricia Nancy Nobrega, Janet Elder and Ronald Gasparovich, Estate Trustees of the Estate of Matthew Samuel Gasparovich, Respondents

BEFORE: Justice Heather McArthur

COUNSEL: Donald D.W. Lamont, Counsel for the Applicants

Patricia Nancy Nobrega, Janet Elder and Ronald Gasparovich, appearing for the Respondents

HEARD: April 18, 2018

ENDORSEMENT

Introduction

[1] Twenty eight years ago, a mistake was made when settling the estate of Matthew Gasparovich. The error related to three adjoining residential properties he bought many years before he died. While all three properties had separate municipal addresses, upon purchase, the title to all three merged under his name. At the time the Executors settled Mr. Gasparovich’s estate, they wrongly believed that the Planning Act, R.S.O. 1990, c. P.13 prohibited the transfer by Will of the properties to separate beneficiaries. As a result, two of Mr. Gasparovich’s children, Patricia Nobrega and Janet Elder, were each given a percentage of the properties as tenants in common.

[2] In 2017, Ms. Nobrega and Ms. Elder applied to the City of Toronto, Committee of Adjustment, to obtain consent for a technical severance to re-establish the three lots which had merged on title. The application was denied. They are appealing that decision

[3] Ms. Nobrega and Ms. Elder now bring an application in this Court, seeking a vesting order with respect to the three properties. They argue that had they received the right information when their father died, the properties would have been divided. They argue that a vesting order is appropriate: such an order will rectify the mistake and put things the way they would have been if they had had the proper advice at the time the estate was settled.

[4] I am unable to agree. Based on the limited information provided on the application, it seems that the proposed severance of the three properties will contravene the Planning Act. While such a contravention is not dispositive of the present application, it is a relevant factor to consider.

[5] The law establishes that caution must be used before granting a vesting order that would conflict with the Planning Act. Unfortunately, I have little information about why the proposed severance of the title to re-establish three separate lots would conflict with the Planning Act. In my view, it would be inappropriate to grant the vesting order in the absence of a full understanding of the concerns of the City.

[6] As a result, the application for the vesting order is dismissed, without prejudice to Ms. Nobrega and Ms. Elder to bring another application in which they provide the appropriate evidentiary basis for the Court to determine whether a vesting order should be granted. If Ms. Nobrega and Ms. Elder do bring a further application, the City of Toronto, City Planning Division should be given notice, so that, if it wishes to do so, it may make submissions as to why such an order should not be granted.

[7] I propose to briefly set out the factual background of this application. I will then outline the relevant law, before turning to my conclusion.

The Factual Background

[8] Mr. Gasparovich died on March 26, 1990. At the time of his death, he owned three adjoining residential properties. While the three properties had had separate legal descriptions since 1940, when Mr. Gasparovich purchased the properties in the 1960’s, the title to each merged in his name.

[9] Mr. Gasparovich had three children: Ms. Nobrega, Ms. Elder, and their brother, Ronald Gasparovich. All three children were named as the Executors of their father’s estate.

[10] As Executors, their first choice was to distribute the three properties between the three children. They were advised, however, that since the title to the three properties had merged into their father’s name, they could not transfer the properties separately as severance of the properties would contravene the Planning Act.

[11] This advice was wrong. Their father died on March 26, 1990. While on July 26, 1990 the Planning Act was amended to prohibit subdividing land by Will, this prohibition did not apply to their father’s estate, as he had died four months before the amendment.

[12] Based on the improper advice they received, the Executors decided to transfer the three properties to Ms. Nobrega and Ms. Elder as tenants in common. Ms. Nobrega received an undivided 33.75% interest. Ms. Elder received an undivided 66.43% interest. Since that time, both Ms. Nobrega and Ms. Elder have maintained the properties separately.

[13] Both women have now reached a stage in their lives where they are starting to consider their own estate planning. Each would like to have the properties that they have considered and treated as their “own”, in their own names. Their brother, the third Executor, agrees that this should be done.

[14] Before bringing their application in this Court, Ms. Nobrega and Ms. Elder applied to the City of Toronto, City Planning Division, Committee of Adjustment, for a technical severance to re-establish three separate lots. On September 27, 2017, the application was denied on the following basis:

In the opinion of the Deputy Secretary-Treasurer, the application does not satisfy the requirements of Section 51(24) of the Planning Act and is NOT approved for the following reasons:

• The proposed land division is premature.

• The proposed land division does not conform to the policies of the official plan.

• The suitability of the land for the purposes for which it is to be subdivided has not been demonstrated.

[15] I was not provided with the written submissions Ms. Nobrega and Ms. Elder relied on in support of their application before the City. Without those submissions, it is difficult to understand the reasons set out above. Further, Ms. Nobrega and Ms. Elder did not give notice to the City of their application in this court for a vesting order for the three properties. Thus, no one from the City appeared to explain why the proposed severance of the properties poses a problem.

The Legal Background

[16] Section 100 of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides as follows:

A court may by order vest in any person an interest in real or personal property that the court has authority to order be disposed of, encumbered or conveyed.

[17] The power to grant a vesting order is equitable in nature. It is also discretionary: Chippewas of Sarnia Band v. Canada (Attorney General), 2000 16991 (ON CA), [2000] O.J. No. 4804 (C.A.), at para. 281.

[18] A court has jurisdiction to make a vesting order even if such an order will contravene the Planning Act: Re Lama et al. and Coltsman et al., [1978] O.J. No. 3395 (Brant Co.Ct.); Holmsten v. Karson Kartage Konstruction Ltd., 1997 16261 (ON SC), [1997] O.J. No. 1352 (Ont. Ct. Gen. Div.). That said, whether a vesting order will conflict with the Planning Act is a relevant factor to consider in determining if the court should exercise its discretion. If the vesting order will contravene the Planning Act, the court should use caution in exercising its discretion: Holmsten v. Karson Kartage Konstruction Ltd.; Kuz v. Kuz, [1980] O.J. No 3819 (S.C.), at para. 8.

Conclusion

[19] The request of Ms. Nobrega and Ms. Elder to vest the properties in their names, in order to rectify the mistake made so many years ago, seems reasonable. But, the law instructs that I should exercise caution before granting a vesting order that might conflict with the Planning Act. I have insufficient information in this application to assist in understanding why the City found that the proposed severance of title to re-establish three lots would contravene the Planning Act.

[20] Given the need for caution and the limited evidence of the City’s position, I am not prepared to exercise my discretion to grant the vesting order sought.

[21] The application is dismissed, without prejudice. If Ms. Nobrega and Ms. Elder bring another application for a vesting order, notice should be given to the City of Toronto, City Planning Division, so that it may make submissions if it wishes. Further, the applicants must provide sufficient information for the Court to understand the position of the City, so that the Court can appropriately determine whether to exercise its discretion to grant a vesting order as requested.

Justice Heather McArthur

Date: May 9, 2018