Court File and Parties
COURT FILE NO.: FS-22-00030123-0000
DATE: 20221215
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Heather Alford, Applicant
AND:
Jeffrey Dunits, Respondent
BEFORE: Justice Papageorgiou
COUNSEL: Dana Lue, for the Applicant
Jeffrey Dunits, Self-Represented Respondent
HEARD: December 15, 2022
Endorsement
[1] The Applicant Heather Alford (“Ms. Alford”) brings a motion for partition and sale of jointly held properly at 196 Aylesworth Avenue, Toronto, ON, M1N 2J6 (the “Aylesworth Property”) pursuant to the Partition Act. The motion was originally returnable on December 8, 2022 but was adjourned to today for the reasons set out below.
[2] The Respondent Jeffrey Dunits (“Mr. Dunits”) was duly served with Ms. Alford’s Application, as well as all materials filed in respect of this motion originally returnable December 8, 2022.
[3] Mr. Dunits initially had tentative counsel in this matter who did not go on the record and who subsequently refused to accept service of the Application. As such he was served personally with the Application in September. The parties then attended a DRO and he was subsequently served with this motion by email.
[4] He did not appear on December 8, 2022, although Ms. Alford’s counsel advised that he did advise Ms. Alford that he intended to appear personally and that he confirmed that he had the zoom link.
[5] On December 8, 2022, as at 10:00 am, Mr. Dunits had not appeared. The Court stood the matter down until 11:00 am. The Registrar advised that she had telephoned Mr. Dunits who advised that he intended to appear, thus demonstrating that he indeed received the motion materials. The Registrar forwarded the zoom link but he advised that he was having trouble connecting. Thereafter, she attempted to telephone him again but it went to voicemail.
[6] Because Mr. Dunits was self-represented and indicated trouble connecting, I adjourned this motion for one week, to December 15, 2022 at 10:00 am, in person, to facilitate Mr. Dunits’ attendance.
[7] Mr. Dunits did attend today but did not file any evidence.
[8] I explained the process to him and permitted him to give viva voce evidence, after which he was cross-examined. I then gave Ms. Alford an opportunity to provide evidence responding to Mr. Dunits’ evidence.
The Partition and Sale Act
[9] Sections 2 and 3 of the Partition Act allows any person with an interest in land in Ontario to make an application for the partition and sale of land or for the sale.
[10] A joint owner of property has a prima facie right to partition and sale: Davis v. Davis (1953), 1953 148 (ON CA), [1954] O.R. 23 (OCA). It stated that …” the Court should compel such partition or sale if no sufficient reason appears why such order should not be made.” In Silva v. Silva (1990), 1990 6718 (ON CA), 1 O.R. (3d) 436 (ONCA), the Court directed that the discretion to refuse partition or sale is narrow.
[11] In Latcham v. Latcham, 2002 44960 (ON CA), 2002 Carswell Ont. 1757 (SCJ) at para 2, the Court of Appeal indicated that the Court may only refuse to order partition of a jointly held property where there is “malicious, vexatious or oppressive conduct. This narrow standard for the exercise of discretion flows from a joint owner’s prima facie right to partition.” The allegation of malicious, vexatious or oppressive conduct should relate to the partition and sale issue itself in terms of the parties’ reasonable conduct related to the proposed partition and sale: Osborne v. Myette, 2004 Carswell Ont. 3331 (SCJ) at para 12.
[12] However, in Silva, the Court also indicated, at para 21, that “in disputes between spouses where the M.W.P.A. was applicable, it was held to be preferable that a judge hearing an application under the Partition Act should exercise his discretion by way of deferring it until all disputes under the M.W.P.A. have been resolved.
[13] In, Czeslawa Piekarska v. Zdzislaw Piekarski, 2013 ONSC 3346, the Court drew together all of the principles related to partition or sale in a matrimonial context as follows:
[30] The jurisprudence on this issue sets out the following legal principles: -relief under s. 2 of the Partition Act is available where the land in question is jointly owned matrimonial property.
where substantial rights in relation to property jointly held by a husband and wife are likely to be jeopardized by an order for partition and sale, an application under the Partition Act should be deferred until the matter is dealt with under the FLA.
an application should not proceed where it can be shown that it would prejudice the rights of either spouse under the FLA.
where the joint owner of land are not husband and wife, the Courts have tended to limit their discretion to refuse a partition order to cases where the applicant has behaved maliciously, oppressively or with a vexatious intent toward the respondent.
[14] In Piekarska, at para 40, the court granted the sale, and found that the sale of the home will eliminate the financial pressure that exists with respect to the liabilities and encumbrances attached to the home, and should assist the parties in moving forward.
[15] In Goldman v. Kudeyla, [2011] O.J. No. 2020 at para 17, the Court indicated that to make a pre-trial order for the sale of a matrimonial home, the court must first determine whether the resisting party has established a prima facie case that he or she is entitled to a competing interest under the Family Law Act. If the resisting party cannot establish a competing interest, then the right to the sale prevails. If the resisting party does establish a competing interest, then the sale will be denied or deferred unless the moving party can demonstrate that the sale would not prejudice the rights of the resisting party.
[16] In Goldman at para 20, McGee J. emphasized that the court has long recognized that issues arising from relationship breakdown are by their very nature inextricably intertwined. Determinations must have a starting point. The sale of the matrimonial home is often the most appropriate catalyst to effect the equal division of family assets.
[17] In Lovie v. Lovie, [2017] O.J. No. 4271, at para 22, the Court held that one party cannot hold joint assets hostage and delay timely resolution out of ignorance regarding the true state of his or her financial affairs.
Analysis
Has Mr. Dunits established a competing claim pursuant to the Family Law Act which could be prejudiced by the sale?
[18] First, as per the court’s direction in Czesla since Mr. Dunits and Ms. Alford are not married, the main consideration is whether or not Ms. Alford has behaved in a malicious, vexatious or oppressive manner towards Mr. Dunits with respect to the sale. Nevertheless, out of an abundance of caution, I will address whether Mr. Dunits has established that he has any competing claim which will be jeopardized.
[19] Mr. Dunits’ main argument and evidence in this regard is that the parties previously resided at 134 Kennelworth Avenue (the “Kennelworth Property”) which he asserts was the matrimonial home. He testified that Ms. Alford was the sole owner from 2012 until 2014 when he says it was transferred to her mother for zero dollars.
[20] He says he found out about this transfer in 2018 and did not take any steps related to this issue because they were still together and he did not think they would break apart.
[21] He says that the Kennelworth Property has been sold.
[22] He says that he wishes to purchase the Aylesworth Property but cannot do so without his share of the equity in the Kennelworth Property, which he estimated to be approximately $134,000. He did not bring any evidence with him regarding the Kennelworth Property and provided only his oral evidence.
[23] Ms. Alford did not provide any additional evidence and rested on the evidence initially filed as well as argument.
[24] Principally, she asserts that the Aylesworth Property is not a matrimonial home and that Mr. Dunits has had many opportunities to file an Answer since Ms. Alford filed her Application in June 2022; he has not. Again, he was able to retain a lawyer, but then the lawyer refused to go on the record. As well, he entered into a Consent Order to pay guideline support on November 2, 2022 of $1,471 based upon his annual income of $100,000. Therefore, Mr. Dunits is not impecunious and it is uncertain as to why he has failed to formally respond to this proceeding or this motion. I add that he has not paid child support despite this Order.
[25] In order for Mr. Dunits to make any claim to the proceeds of the Kennelworth Property, he will have to bring proceedings to set aside the alleged transfer from Ms. Alford to her mother and also make a trust claim of some sort over the proceeds.
[26] Although he says he never took any action because the parties were together when he found out about the transfer in 2018 and he thought they would stay together, they separated approximately 2 years ago in 2020. There is no explanation for why he has taken no steps since that time to claim any interest in the Kennelworth Property or its proceeds.
[27] He has known about this proceeding since June 2022 and has not responded. He has known about this motion since November 14, 2022 when he was served, and the original return date was adjourned to accommodate him as the Registrar had advised me that he told her he was having trouble connecting on zoom on December 8, 2022.
[28] I note that today he advised that when he tried to join the December 8, 2022 zoom link it said that the meeting had not commenced. If that had been the case, it is odd that he did not telephone the Registrar who had phoned him to give him the link. Indeed as set out in my December 8, 2022 endorsement and above, the Registrar continued to phone him after she sent him the zoom link right up until 11:00 am and it went to voicemail. The other participants, including myself were able to connect with the same link and we did not receive any message that said the meeting had not commenced.
[29] I find Mr. Dunits’ testimony on this issue troubling.
[30] Even if I accepted his evidence, I find that Mr. Dunits has not established a competing right under the Family Law Act because he has not filed an Answer, or sufficient evidence to do so.
[31] Even if he had, the Aylesworth Property is not the matrimonial home and the evidence before me establishes that there is enough equity in the Aylesworth Property to secure any claim he may have had to the proceeds of the Kennelworth Property if and when he files an Answer and makes some sort of claim.
[32] In that regard, Ms. Alford’s uncontradicted evidence is that the Aylesworth Property was purchased in August 2017 for $630,000 and that it has debts secured against it in the approximate amount of $430,000. Therefore, at a minimum there is $200,000 in equity in this home ($66,000 more than the amount Mr. Dunits says he is owed in respect of the Kennelworth Property proceeds); the Order sought by Ms. Alford does not seek any distribution but that the funds be held in trust after the sale pending determination of the appropriate division. It is also well known that property values have increased since 2017 and so there is likely even more equity in the Aylesworth Property.
[33] Therefore, the claim which Mr. Dunits has asserted today for the first time in this proceeding, is adequately secured and there will be no prejudice to that claim if and when he asserts it.
Has Ms. Alford Behaved in a Malicious, Vexatious or Oppressive Manner?
[34] Regarding the issue of whether Ms. Alford has behaved with a malicious, vexatious or oppressive intent towards Mr. Dunits with respect to this sale, I find that she has not.
[35] After the parties separation on December 2, 2020, Mr. Dunits moved in with his girlfriend and then into the Aylesworth Property which has two rentable units. Ms. Alford lived with her mother until April 2021 when she rented a property at 2174 Queen Street.
[36] Although Mr. Dunits complains that sale of the Aylesworth Property will result in the children having to spend time with him in an apartment the evidence establishes that since May 2022 the children have primarily resided with Ms. Alford and see Mr. Dunits on alternating weekends.
[37] Therefore they are currently primarily living with Ms. Alford in an apartment while Mr. Dunits lives in a house.
[38] Ms. Alford needs her equity to find more suitable accommodation.
[39] As well, since July 2022, Ms. Alford and her mother have been primarily paying the Aylesworth mortgage.
[40] The uncontradicted evidence (including Mr. Dunits’ own evidence) is that he has not been paying the mortgage recently.
[41] Ms. Alford’s mother has advised her that she will not contribute to any further mortgage payments and Ms. Alford is concerned she will not be able to if the property is not sold soon.
[42] The mortgage on the Aylesworth Property is up for renewal on February 28, 2023 and Ms. Alford wishes to sell it before then to avoid having to renew it.
[43] Ms. Alford concedes that Mr. Dunits had expressed an interest in purchasing her interest in the Aylesworth Property for at least the past year and that she entertained the suggestion but too much time has passed without him taking any concrete steps to do so.
[44] There is nothing in the record or in the testimony that establishes that Ms. Alford has behaved in a malicious, vexatious or oppressive manner with respect to this sale.
[45] Indeed she has been reasonable in permitting time to pass to allow Mr. Dunits to make an effort to purchase her interest but he has taken no steps.
[46] In my view, the sale of this Property is a good first step which will eliminate financial pressures which exist with respect to this home as per Piekarska, at para 40 above. As per Lovie at para 22, Mr. Dunits cannot hold this joint asset hostage indefinitely.
[47] There is no basis for me to refuse to exercise discretion to sell the Aylesworth Property.
[48] Ms. Alford requests costs in the amount of $4,000 which is her full indemnity costs. Her counsel was called to the Bar in 2013 and charges $350 per hour. She served Mr. Dunits with three offers to settle which are the exact relief obtained, except that had Mr. Dunits accepted these offers, there would have been no costs.
[49] Mr. Dunits did not even respond to the offers.
[50] When I asked for his submissions on costs he agreed to them and agreed they could be paid out of the proceeds of sale.
[51] I find these costs are fair and reasonable and am awarding them.
Papageorgiou J.
Date: December 15, 2022