The Motion

[1] This is a motion by the Applicant for exclusive possession of the home at 3600 Morning Star Drive, Unit 56, Mississauga (the "home") until the home is sold and closed. There is an issue as to who will pay taxes, utilities and other expenses of the home until it is sold and closed.

[2] The Applicant also seeks an order permitting her to pick up her personal property at the home. Fortunately, the parties agreed the Applicant could attend at the home on March 9, 2020 between 11 am and 4 pm to retrieve her property. Both parties may have third parties video tape what occurs on that date. If there is a dispute as to what belongs to the Applicant or other issues arising from the Applicant's attendance to retrieve her personal property, the parties can schedule a return date before me to deal with any such issues.

Background

[3] The parties had been in a relationship since early 2014 when they commenced to reside together. They were not married. The home is not a matrimonial home.

[4] The home was purchased on January 21, 2016 for approximately $300,000.

[5] The primary dispute in this proceeding is the sale and ownership of the home.

[6] Title to the home was registered as “Tenants in Common” with 99% interest of the Applicant and 1% interest of the Respondent.

[7] The Applicant submits the stated title ownership reflects their beneficial ownership.

[8] The Respondent submits that title was taken in this manner for tax purposes, namely, to take advantage of first-time home buyer's benefits and that it was understood and agreed he was a 50% beneficial owner.

[9] There is a mortgage registered against the home.

[10] The relationship broke down in approximately May 2018. The Applicant left the home. The Respondent continued and continues to reside in the home.

[11] The parties cannot agree and arrange the Applicant's retrieval of her personal belongings in the home despite a prior court order. Both blame the other.

[12] There are other issues regarding misappropriation of family funds but again, this is not an issue I can resolve on a motion such as this. Similarly, there are accounting issues with respect to expenses for the home, possibly occupation rent, maintenance, or lack of maintenance of the home, and other such issues to be decided by the court absent a settlement.

[13] This application was commenced in May 2019.

[14] The home was appraised value of $516,000 in November 2019.

Analysis

[15] Since both parties are registered owners, a request for a sale of the home by either party triggers a sale of the home. The home must be sold. And now. This is not a real issue of dispute that the home needs to be sold. The issues are how and how much of the net proceeds, if any, are to be distributed to the parties.

[16] There is evidence to support the Respondent’s delay in selling the home. The reason is obvious, he pays no occupation rent and there appear to be arrears in ongoing home expenses. Some of the documents suggest the Respondent has impeded the Applicant’s retrieval of her personal property.

[17] In these circumstances, it is necessary to avoid any impediments and potential impediments to the sale of the home.

[18] I see no reason why, after the numerous demands for the sale of the home, the Respondent should remain in the home particularly so given the fact the Applicant is the registered owner of 99% of the home, a presumption which must be rebutted by the Applicant, and the Applicant has no access to her equity while paying accommodation expenses elsewhere.

[19] In my view, the home must be sold immediately without further delay or impediment by either party.

[20] Accordingly, I order the following:

a) The Respondent will vacate the home by April 30, 2020. He will pay taxes, utilities and other expenses associated with the home until then;

b) Within the next 10 days, the Applicant's counsel will forward to the Respondent's counsel a list of 3 real estate agents who have no connection with either party or either counsel. Within 7 days thereafter the Respondent will select one of those real estate agents by the Respondent's counsel advising the Applicant's counsel in writing of the selection. If the Respondent's counsel fails to do so by end of day on the seventh day, the Applicant may unilaterally select one of those agents;

c) Both parties will sign the listing agreement within 48 hours of it being sent to counsel by the real estate agent;

d) Upon execution of the listing agreement, counsel for the parties will agree on an independent real estate lawyer to affect the sale. Both parties will cooperate with the real estate lawyer in the execution of any documents required by the real estate lawyer;

e) If the parties cannot agree on a listing price, the listing price will be $519,000;

f) The terms of sale will be cash or certified cheque on closing. In other words, there will be no conditions and no vendor take back;

g) Any offer is to remain open for acceptance for at least 96 hours. A copy of the offer will be sent to both parties and the real estate lawyer;

h) Both parties will cooperate with the real estate agent to show the home;

i) After the Respondent moves out of the home, unless in an emergency relating to the home, neither party can attend the home without the written consent of the other party and, if granted, the other party may also attend at the same time and video record the events;

j) If an offer is received and both parties agree to reject or accept the offer, the real estate agent will proceed as directed by the parties – the offer will be accepted or rejected. Acceptance or rejection will be done within 24 hours of receipt of the offer. If accepted, both parties will sign the offer. If the parties disagree on whether to accept the offer, either party can arrange for an attendance before me at 9 am on 48 hours notice to seek court approval of the offer;

k) Should there be any difficulties in the process of sale of the home by either party, any party can attend before me on 48 hours notice for an order to dispense with the approval and signature of the either party to the sale of the home or any other directions necessary to facilitate the sale of the home;

l) Upon completion of the sale, the real estate lawyer shall, after having paid the mortgage balance, all outstanding utilities, and other expenses, usual adjustments of the home and the real estate lawyer's reasonable legal fees, the balance shall be paid into court to the credit of this action. The net proceeds of sale shall remain in court until further order;

m) Either party may bring a motion to pay out a portion or all the net proceeds of sale held in court;

n) On any attendance before me to deal with the sale of the home, counsel for both parties shall first provide me and the other party with Bills of Costs so that the potential exposure of both parties to costs is known in advance of the hearing and decision in the attendance.

COSTS

[21] In these circumstances, costs should be reserved to the trial judge for this motion.

Ricchetti J.

Date: March 2, 2020

Khan v. Soares, 2020 ONSC 1350

Case Summary

The Motion

Background

Analysis

COSTS

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues