Court File and Parties

COURT FILE NO.: CV-22-00690095-0000 DATE: 20230706 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ADELA BELILLA PANTOJA, Applicant – and – AMERICA ALEJANDRA DIAZ BELILLA and LIGOR BUNGA, Respondents

BEFORE: Justice E.M. Morgan

COUNSEL: Guillermo Schible, for the Applicant America Alejandra Diaz Belilla and Ligor Bunga, on their own behalf

HEARD: June 15, 2023

Partition Application

[1] The Applicant, Adela Belilla Pantoja, and the Respondent, America Alejandra Diaz Belilla, are mother and daughter, respectively. The Respondent, Ligor Bunga, is Ms. Diaz Belilla’s life partner. Ms. Pantoja and Ms. Diaz Belilla own four properties together, one of which is also co-owned by Mr. Bunga.

[2] Unfortunately, the parties do not get along and cannot agree on how to divide up the properties. Ms. Pantoja’s counsel states in the introduction of his factum that, “the parties’ relationship is, not just deteriorated, but destroyed”. That sentiment is matched in the factum submitted by Ms. Diaz Belilla and Mr. Bunga, who state that, “there has been a clear unwillingness to find a resolution of this matter with the oppos[ing] counsel and his client.”

[3] The Application seeks an order for partition and sale of the four properties, with directions as to how that process is to be conducted. The four properties are identified in the Application Record as follows:

a) “XO” – a pre-construction agreement with XO Residences Inc. as vendor, dated April 13, 2019, to purchase unit 408 at 1182 King St. West, Toronto

b) “Charles” – a pre-construction agreement with MOD Developments (Charles) Inc. as vendor, dated May 14, 2020, to purchase unit 1411 at 55 Charles St. East

c) “Delaware” – a residential property where Ms. Pantoja lives, at 568 Delaware Avenue North, Toronto, M6H 2V2

d) “Kensington” – a residential property where Ms. Diaz Belilla and Mr. Bunga live, at 14 Kensington Place, Toronto, M5T 2K4

[4] The history of the parties’ property relations, and their mutual allegations and explanations, is complex. I have read through the record and have come to understand that the reciprocal recriminations that characterize this relationship are not resolvable. They disagree over almost everything in which they have a mutual interest, and have accused each other of serious and illegal interventions into each other’s financial lives. In short, the parties simply must go their separate ways.

[5] Courts have a very narrow range of discretion to refuse an application for partition and sale, and I see no reason to exercise that discretion here: Economopoulos (Re), 2014 ONCA 687. In fact, much as the parties dispute everything else, there really is no dispute about partition and sale. The history of mutual recriminations that make up most of the evidentiary record is almost beside the point. There is so much animosity and blame laying between the parties, and so many emotionally charged positions taken toward each other, that any legal argument with respect to property rights cannot be worked out overall.

[6] Neither side wants to remain a co-owner with the other. As Ms. Diaz-Belilla stated at the hearing, “I just want my life back.” Ms. Pantoja expresses a similar desire in her affidavit: “I want to sever ties as soon as reasonably possible for all of my property, interests, and liabilities…” It is clear that the four properties at issue here must be sold and divided in an equitable way reflecting the value of each of the respective parties’ ownership. The only way to resolve the property issues between these parties is on a property-by-property basis as each one is disposed of.

[7] The parties have each expressed a different version of how the equity in the properties is to be divided. In general, Ms. Diaz Belilla expressed the view at the hearing that she is entitled to 50% of any property in which she and her mother have joint interests. On the other hand, Ms. Pantoja, through her counsel, expressed the view that the proceeds of any sale are to be divided in accordance with the equity that each side invested.

[8] I am not convinced that there is any one overall plan or arrangement as to the rights in these properties. Each of them was acquired at a different time and under a different set of circumstances and agreements. There will have to be four different determinations on how the proceeds of sale get disbursed.

[9] In requesting an order for partition and sale, Ms. Pantoja seeks to have herself appointed to be in charge of the sale. At the hearing, Ms. Pantoja’s counsel made the submission that his client is the only one capable of being in control of the sale process. He argued that Ms. Diaz Belilla is “not capable of being even handed.”

[10] I do not know whether or not that is really the case, and I would make no such value or character judgment. According to Ms. Diaz Bililla and Mr. Bunga, the conduct of Ms. Pantoja toward them has been equally worthy of serious complaint. The record does not make clear to me which side, on their own, would be more likely to manage the sale in a way that is transparent and acceptable to the other side. In fact, the parties’ conduct toward each other strongly suggests that neither of them can be counted on to take the other side’s interests into account in selling a jointly owned property.

[11] Under the circumstances, the dispute between the parties calls to be resolved not by a sale unilaterally conducted by one side, but by a neutrally conducted judicial sale. That process is described thoroughly in Rule 55.06 of the Rules of Civil Procedure. It gives an Associate Judge, to whom this matter will be referred, wide latitude in fashioning fair procedures for any sale of co-owned property that are appropriate to the situation at hand.

[12] For ease of reference, I will produce Rule 55.06 in full. Not all of the sections will be applicable, as the specific procedures will be designated by the Associate Judge conducting the sale. But the Rule will set the overall framework in which the sale of the properties will take place, and it will be helpful for the parties to understand the full scope of that framework:

Reference for Conduct of Sale

Method of Sale

55.06 (1) Where a sale is ordered, the referee may cause the property to be sold by public auction, private contract or tender, or partly by one method and partly by another.

Advertisement

(2) Where property is directed to be sold by auction or tender, the party having carriage of the sale shall prepare a draft advertisement according to the instructions of the referee showing,

(a) the short title of the proceeding;

(b) that the sale is by order of the court;

(c) the time and place of the sale;

(d) a short description of the property to be sold;

(e) whether the property is to be sold in one lot or several and, if in several, in how many, and in what lots;

(f) the terms of payment;

(g) that the sale is subject to a reserve bid, if that is the case; and

(h) any conditions of sale different from those set out in Form 55F.

Conditions of Sale

(3) The conditions of sale by auction or tender shall be those set out in Form 55F, subject to such modifications as the referee directs. Hearing for Directions

(4) At a hearing for directions under subrule 55.02 (3), the referee shall,

(a) settle the form of the advertisement;

(b) fix the time and place of sale;

(c) name an auctioneer, where one is to be employed;

(d) give directions for publication of the advertisement;

(e) give directions for obtaining appraisals;

(f) fix a reserve bid, if any; and

(g) make all other arrangements necessary for the sale. Who May Bid

(5) All parties may bid except the party having carriage of the sale and any trustee or agent for the party or other person in a fiduciary relationship to the party.

(6) Where the party having carriage of the sale wishes to bid, the referee may transfer carriage of the sale to another party or to any other person.

Who Conducts Sale

(7) Where no auctioneer is employed, the referee or a person designated by the referee shall conduct the sale.

Purchaser to Sign Agreement

(8) The purchaser shall enter into an agreement of purchase and sale at the time of sale.

Deposit

(9) The deposit required by the conditions of sale shall be paid to the party having carriage of the sale or the party’s lawyer at the time of sale and the party or lawyer shall forthwith pay the money into court in the name of the purchaser.

Interim Report

(10) Where a sale is made through an auctioneer, the auctioneer shall make an affidavit concerning the result of the sale, and where no auctioneer is employed, the referee shall enter the result in the procedure book and, in either case, the referee may make an interim report on the sale (Form 55G).

Objection to Sale

(11) A party may object to a sale by making a motion to the referee to set it aside, and notice of the motion shall be served on all parties to the reference and on the purchaser, who shall be deemed to be a party for the purpose of the motion.

Completion of Sale

(12) The purchaser may pay the purchase money or the balance of it into court without order and, after the confirmation of the report on the sale, on notice to the party having carriage of the sale, the purchaser may obtain a vesting order.

(13) Where possession is wrongfully withheld from the purchaser, either the purchaser or the party having carriage of the sale may move for a writ of possession.

(14) The purchase money may be paid out of court in accordance with the report,

(a) on consent of the purchaser or the purchaser’s lawyer; or

(b) on proof to the Accountant that the purchaser has received a transfer or vesting order of the property for which the money in question was paid into court.

(15) No transfer shall be approved until the referee is satisfied that the purchase money has been paid into court and, where a mortgage is taken for part of the purchase money, that the mortgage has been registered and deposited with the Accountant.

[13] I will point out that although the Associate Judge appointed as referee will have a variety of powers at his or her disposal, the parties will have to engage in a certain amount of cooperation. There is only so much that case management by an Associate Judge can do for them if they do not undertake to work with each other toward their mutual goal of separating their financial lives.

[14] Up until now, and in dealing with other properties that are not at issue here, each side has acted unilaterally and non-transparently, leaving the other to make accusations that that cannot be substantiated but also cannot be entirely dismissed. That conduct will hopefully now stop.

[15] It should be obvious to the parties that this process will also require each of them to be reasonable in their expectations of how much to expect from a sale. Further, they will each have to cooperate with the sale process in terms of moving out and providing a potential purchaser with vacant possession of the two properties in which they reside. It is for the parties to rise to the challenge of getting this done in an orderly and business-like way.

Disposition

[16] There will be an order to go that the Application be referred to an Associate Judge and that the four properties – XO, Charles, Delaware, and Kensington – shall be sold in a sale or series of sales conducted by the Associate Judge (or his/her designate) pursuant to Rule 55.06. The Associate Judge shall also hold a reference to determine how the proceeds of disposition of any or all of the four properties are to be disbursed.

[17] Costs of the Application are reserved for the Associate Judge hearing the reference.

Date: July 6, 2023 Morgan J.