Court File and Parties
Court File No.: FS-20-20794 Date: 20220503 Ontario Superior Court of Justice
Between: KYLE SANVICTORES Applicant – and – NANCY SANVICTORES Respondent
Counsel: Lauri Daitchman, for the Applicant No one appearing for the Respondent
Heard: April 21, 2022
M. D. FAIETA j.
Reasons for Decision
[1] The Applicant father brings this motion for the sale of a jointly owned rental property.
Background
[2] The parties were married in July 2012. They have two children, ages 6 and 8. They separated in May, 2020.
[3] The Applicant was a television studio designer and operated under the name AKA Creative Inc. The Respondent is a minority shareholder of AKA. Prior to their separation, the Respondent performed administrative tasks for AKA.
[4] The parties jointly own a condominium municipally known as 33-780 Sheppard Avenue East, North York, Ontario (“the Rental Property”). Neither party reside in the Rental Property. It is not a matrimonial home. The parties lease the Rental Property to third parties. The rental income barely cover the Rental Property’s expenses. In April 2020 the Respondent deferred the mortgage for six months. The Applicant claims that the Respondent did so without his consent however she states that the deferral was a joint decision. The Respondent admits that she deposited the monthly rental income into her sole account. The Respondent transferred only 9 of the 18 monthly rental payments during the period March 2, 2020 to August 29, 2021 from her sole bank account to their joint account.
[5] The parties have significant debt and low incomes. The Applicant’s annual income is $50,000.00 and the Respondent’s annual income is $18,720.00. The Applicant states that his friends and family have loaned him $200,000.00. The Respondent’s financial statement states that she owes $235,000.00 to her mother, Sarah Elyas, who is a real estate agent.
[6] The Applicant states that the fair market value of the Rental Property is $1 million. The outstanding mortgage balance is about $342,000.00. The Applicant wants to sell the Rental Property as he is in dire needs of funds.
[7] The Respondent states that she agrees that the Rental Property should be sold and that it was unnecessary for the Applicant to bring this motion. The Respondent states that the Rental Property should be sold to her mother. She submits that the parties will save commission of about $40,000.00 if the Rental Property is sold to her mother.
[8] In her affidavit, Ms. Elyas states:
Nancy has approached me and asked me whether I was interested in assuming Kyle and Nancy’s interest in the rental property (by way of private sale). I advised Nancy that I was willing to do so to assist her specifically, as I am advised that neither she, nor Kyle, have a realtor, or and a buyer.
Given that the parties do not have a lot of funds, I am willing to not charge real estate commission fees for this transaction. That is a cost savings of around $40,000.00.
Having regard to the foregoing, I am ready, willing, and able to complete the purchase of sale transaction for the rental property upon an agreed amount by the parties.
[9] The Applicant states that the Respondent does not wish to sell the Rental Property to anyone other than her mother. The Applicant does not wish to sell the Rental Property for less than fair market value. There is no evidence that Ms. Elyas has submitted an offer to purchase nor offered to pay a specific amount for the purchase of the Rental Property.
Analysis
Respondent’s Failure to Attend the Motion
[10] This motion was on the open motions list for 10:00 am today. At that time, a court reporter would not be available until the afternoon. As a result, this motion was adjourned to 2:00 pm. Neither party objected. At about 11:15 am, the Respondent advised my judicial assistant that she was not available at 2:00 pm. No reason was given. This message came to my attention at about 1:30 pm following completion of the other two motions heard that day. The court registrar contacted the Respondent when she did not appear at 2:00 pm. The Respondent advised her that she would not be joining the hearing of the motion as it was an orthodox holy week and that “she had things to do”. I directed the court registrar to contact the Respondent to advise her that the Applicant’s motion would be heard at 2:30 pm. The Respondent responded as follows to the Registrar: “You cannot have a Motion without my attendance on a non-emergency basis as it would be prejudice to me. I advised the Court of my unavailability at 2 pm many hours ago.” The Respondent did not attend the hearing of the motion at 2:30 pm to seek an adjournment.
[11] The court’s duty under Rule 2(4) of the Family Law Rules is to “apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective”. Under Rules 2(2) and 2(3) the primary objective of the Rules is to enable the court to deal with cases justly, which includes (a) ensuring that the procedure is fair to all parties;(b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
[12] The Respondent delivered two affidavits in support of her position that an order for the sale of the condominium should not be granted. Thus, the Respondent’s case for her position was before the Court and its merits were considered. The hearing of this motion today was scheduled two months ago by Endorsement dated February 25, 2022. The Respondent failed to attend before this court to ask for an adjournment or propose an alternate date for the hearing of this motion. Instead, she unilaterally sought to impose an adjournment, with no set return date, by failing to attend. The administration of justice, and particularly the need for the orderly process of family law proceedings, should not be governed by the arbitrary whims of a litigant. In the circumstances, I found that it was just to proceed with the hearing of the motion.
Sale of the Rental Property
[13] The issuance of an order for the sale of a jointly held property under sections 2 and 3 of the Partition Act, R.S.O. 1990, c. P.4, is governed by the following principles:
A court is required to compel the partition and sale of a jointly held property unless the opposing party has shown that there is malicious, vexatious, or oppressive conduct on the part of the moving party in relation to the sale itself: Marchese v. Marchese, 2019 ONCA 116, para. 5
There is some overlap in the scope of the terms “malicious” or “malice”, “vexatious”, and “oppressive”. “Malice” arises when a step is taken for an improper purpose including spite, ill-will, vengeance, or to gain a private collateral advantage. A step may be viewed as “vexatious” when it is taken to harass or oppress others rather than to assert a legitimate right. The sale of a matrimonial home is “oppressive” when the co-tenant that opposes the sale will suffer serious hardship if the matrimonial home is sold: MacDonald v. MacDonald (1976), 14 O.R. (2d) 249 (Div. Ct.), at p. 254.
Additional considerations apply when a spouse seeks an order for the sale of a matrimonial home prior to the final determination of the spouses’ claims under the Family Law Act, R.S.O. 1990. c. F.3 (“FLA”). In such case, an application under the Partition Act should not proceed when the opposing spouse shows that the sale would prejudice the rights of a spouse under the FLA or a court order (see Silva v. Silva (1990), 1 O.R. (3d) 436 (C.A.), at p. 445; Martin v. Martin (1992), 8 O.R. (3d) 41 (C.A.), at para. 26 or, at the very least, that the opposing spouse’s arguable claims under the FLA would be prejudiced (see Binkley v. Binkley, [1988] O.J. No. 414 (C.A.), at para. 3; Gibson v. Duncan, 2013 ONSC 5377, at paras. 20-23).
The court does not have jurisdiction to impose a right of first refusal or force parties into the buyout of a property: see Gertley v. Gertley, 2022 ONSC 1750, para. 13; Laurignano v. Laurignano, 2009 ONCA 241, 65 R.F.L.(6th) 15;
[14] There is nothing malicious, vexatious or oppressive about the Applicant’s request to have the Rental Property listed for sale on the open market. On the other hand, the Respondent’s demand that the Rental Property be sold to no one other than her mother is oppressive. There is no evidence of the price that Ms. Elyas proposes to pay for the Rental Property. There is no evidence that she has submitted an offer to purchase. I agree with the Applicant’s submission that the suggestion of Ms. Elyas that the parties could save $40,000 in real estate commission if the Rental Property is illusory given that much more could be lost by preventing the sale of the Rental Property at fair market value on the open market.
[15] I order that the Rental Property be sold on the terms proposed by the Applicant with minor modifications.
Order
[16] Order to go as follows:
On or before May 10, 2022, the parties shall sign all documents necessary to list their rental property, namely the property municipally known as 33-780 Sheppard Avenue in North York, Ontario (“the Rental Property”), for sale.
The parties shall cooperate with the Realtor(s) on the sale of the Rental Property.
If the parties cannot agree upon a Realtor to list the Rental Property for sale on or before May 6, 2022, the parties shall each choose their own arm’s-length Realtor who will co-list the Rental Property for sale.
The Realtor(s) shall communicate directly with the tenants of the Rental Property for the purposes of selling the Rental Property (e.g. to schedule showings and home inspections).
If the parties cannot agree upon any details regarding the sale of the Rental Property (e.g. the Listing Price or whether to accept an offer to purchase the Rental Property), the parties shall follow the Realtor(s)’ advice on any such issues.
If the parties cannot agree upon a Real Estate lawyer for the sale of the Rental Property within one (1) week of the acceptance of an offer to purchase the Rental Property, the parties shall each retain their own Real Estate lawyer for this purpose. Each party shall pay his/her own Real Estate lawyer’s fees.
On or before May 5, 2022, the Respondent Mother shall provide the Applicant Father with the name and contact information of the tenants of the Rental Property.
The Respondent Mother’s consent as to form and content of this Order is hereby dispensed with.
The Applicant shall deliver costs submissions by May 10, 2022. The Respondent shall deliver responding costs submissions by May 17, 2022. The Applicant shall deliver reply costs submissions by May 24, 2022. Each submission shall be no more than three pages exclusive of offers to settle and a bill of costs.
Mr. Justice M. D. Faieta Released: May 3, 2022