Court File and Parties

Court File No.: CV-20-0111-00 Date: 2020-06-23

Superior Court of Justice - Ontario

Re: Ciemny (Aubin), Applicant v. McFall, Respondent

Heard: Teleconference on June 22, 2020

Before: Pierce, J.

Counsel: Mr. N. Wainwright, for the Applicant Mr. J. McFall, unrepresented, personally

Reasons on Application under the Partition Act, R.S.O. 1990, c. P.4 for Sale of Property

[1] The applicant, Suzanne Aubin, applies for an order for sale of the property located at 537 Hilldale Road, Thunder Bay, which she owns in joint tenancy with the respondent. The respondent, Justin McFall, appears personally at the return of the application; he has filed no responding material. Nevertheless, I heard his submissions in relation to the draft order proposed by the applicant.

[2] The parties purchased the property in joint tenancy while they were in a relationship together. The relationship broke down in 2015 and Ms. Aubin left the home; Mr. McFall remained in occupation at the property, continuing to the present.

[3] The property also contains two rental units which generated total rents of $1,800.00, a sum Ms. Aubin says was sufficient to pay the mortgage and expenses. After Ms. Aubin left the property, she paid no expenses for it and Mr. McFall did not account to her for the rental income he received. This state of affairs continued for almost five years.

[4] Mr. McFall is not opposed to the sale of the property but takes issue with certain terms of sale proposed by the applicant. In particular, he submits that his customary realtor should handle the transaction. The applicant objects.

[5] The respondent has not filed any material to identify the realtor he proposes to retain, Ms. S. Leger with Re/Max. In my view, given that there may be disputes arising from the sale of this property, it is preferable that an arms-length realtor with no prior relationship with either party be retained to market the property.

[6] Mr. McFall submits that the applicant should be responsible for half the property taxes. There is no application before the court for a reference to take accounts in connection with the rents received or expenses attributable to the property and the value of any improvements, as he suggests.

[7] Prima facie, the evidence before the court is that Mr. McFall has enjoyed the right of occupation for nearly five years, and that he has received the rents, which Ms. Aubin contends were sufficient to pay the mortgage and other costs over that period of time. There is no evidence to the contrary and no evidence concerning improvements. Thus, the proceeds of sale shall be equally divided, except for any tax liens on title, which will be paid by the person responsible for them.

[8] Although the applicant made provision in her draft order for either party to purchase the property if he or she were the highest bidder, Ms. Aubin submitted at the argument of the application that neither party should be permitted to bid on the property. Mr. McFall wishes to bid on the property. In my view, if he can satisfy the criterion that the property be sold to the highest bidder, Ms. Aubin is not prejudiced by him bidding. I find, therefore, that Mr. McFall should be permitted to bid, provided the process is not drawn out.

[9] Mr. McFall also disputes that he should pay the sum of $5,000 proposed as costs of the application. In my view, these costs are excessive. The applicant has incurred disbursements of $300; the balance relates to legal fees. Mr. Wainwright is in his first year of call. His hourly rate is $200.00.

[10] In support of the application, Ms. Aubin filed a short affidavit, factum, and draft order, the latter being helpful to the court in addressing objections and submissions on consent. Mr. McFall did not file any responding material. The facts of the case are straightforward, and the case law is well-settled. In my view, costs are warranted in the amount of $2,000.00 inclusive of disbursements and HST.

[11] Referring to the terms of the proposed order, I make the following orders:

1. On consent, the respondent, Justin McFall shall vacate the premises at 537 Hilldale Road, Thunder Bay, Ontario within 60 days of this order and leave the property reasonably clean and in good condition.
2. The property known municipally as 537 Hilldale Road, Thunder Bay, Ontario shall be listed for sale by Royal Lepage Realty, by a realtor with whom neither party has a personal relationship. The real estate fees shall be shared equally by the parties, to be paid from the proceeds of sale.
3. The parties shall retain and instruct the law firm, Carrel and Partners, to conduct the sale. The legal fees for the sale shall be shared equally by the parties, to be paid from the proceeds of sale.
4. The parties shall cooperate in arranging for the sale of the property and shall provide all necessary documents and information to the listing agent and real estate lawyer as necessary to finalize the sale.
5. Either party shall be entitled to bid on the property, provided that any bid shall be made in writing no later than October 1, 2020 unless otherwise agreed by the parties. Either party bidding shall be entitled to receive all relevant information concerning the property and its sale in order to exercise his or her due diligence.
6. No party shall enjoy a right of first refusal or a right of first offer with respect to the property.
7. The highest offer for the property shall be accepted subject to the right of such offer to be improved through negotiation based on any recommendation by the listing broker unless the parties agree otherwise, subject to further order of the court.
8. Subject to the conditions and costs of sale set out in these orders, the net proceeds of sale shall be equally divided between the parties except for any tax liens on title which are to be paid by the party responsible for the lien.
9. If necessary, either party may move for directions on 14 days’ notice to the opposing party. I am not seized of this matter.
10. The applicant shall have her costs of this application in the amount of $2,000.00 inclusive of disbursements and HST, payable from the respondent’s share of the proceeds of sale.

“original signed by” The Hon. Madam Justice H.M. Pierce

DATE: June 23, 2020