Reasons for Decision
Court File No.: CV-24-726214-00ES
Date: 2025-06-23
Ontario Superior Court of Justice
Between:
Kevin Banfield, Applicant
and
Bozana Ristevska, Respondent
Applicant Counsel: Mark D. Lahn
Respondent Counsel: Houman Mortazavi
Heard: June 18, 2025
Judge: Frederick L. Myers
The Outcome
For the reasons set out below, I resolve two issues in this decision. First, I dismiss a request for an adjournment of the application hearing made by the respondent, Bozana Ristevska. Second, I grant the application for partition and sale.
At the hearing on June 18, 2025, I reserved my decision on the adjournment motion and heard counsels’ submissions on the merits. I am therefore able to make both decisions now.
This Application for Partition and Sale
Pavlina Banfield Ristevska passed away on November 16, 2019. She died intestate.
Kevin Banfield was the spouse of the deceased. They have a small child who is six or seven years old.
Bozana Ristevska is the mother of the deceased.
Everyone lived together at 10 Leila Jackson Terrace, Toronto. The three adults owned the property as joint tenants.
Upon the death of Pavlina Banfield Ristevska, her share of title to the house passed by right of survivorship to her husband and her mother. They became joint title holders 50/50.
Shortly after her daughter’s death, Bozana Ristevska severed the joint title so that she and Kevin Banfield are now tenants in common, each owning a 50% interest in the property.
The two adults and the child continue to live at the property.
On November 4, 2022, Kevin Banfield applied for dependent’s support for himself and his son from the estate of his deceased wife. He asked for an order evicting his mother-in-law from the house. He also sought an order that a rental property in the name of Bozana Ristevska on Edmunds Avenue in Toronto was available to the estate to provide dependent’s support because it had been conveyed by the deceased during her lifetime to herself and her mother jointly.
Ms. Ristevska retained Mr. Mortazavi as her lawyer in the spring of 2024.
On April 3, 2024, Ms. Ristevska commenced her own application for dependent’s support against Mr. Banfield, the child, and her daughter’s estate. She too seeks exclusive possession of the house on Leila Jackson Terrace. She seeks an order that the property is available to provide for her support. In the alternative, she claims that Mr. Banfield holds some or all of his share of title to the house in trust for Ms. Ristevska. She also seeks access to the proceeds of a life insurance policy on the deceased’s life.
The parties tried mediating before Gilmore J. They could not reach agreement. On May 3, 2024, when the mediation failed, Gilmore J. made recommendations to the parties to try to help them move forward toward resolution by August, 2024. She wrote:
The parties are at a deadlock in terms of whether the Leila Jackson property is sold or the Applicant's interest bought out. I advised that the sole jurisdiction of the Court would be to sell the property. However, if the Respondent [Ms. Ristevska] is serious about a buyout she should obtain a certified appraisal for the property and share it with the Applicant [Mr. Banfield]. The Applicant should cooperate with any arrangements for the appraisal but the Respondent shall be solely responsible for the cost of the appraisal. [Emphasis added.]
Justice Gilmore saw the parties again on August 1, 2024. Her endorsement commences:
[1] Another two hours was spent trying to settle this matter today. This is after my efforts during an all-day mediation on May 2, 2024, various attempts to settle made by Justice Faieta in June and July 2024 and an exchange of offers to settle by the parties.
[2] The issue of a buyout of Mr. Banfield's interest in the Leila Jackson property cannot be resolved and I decline to schedule more court time for a settlement which apparently cannot be achieved. I am also concerned about further delay in the resolution of the living arrangements between the parties as the current toxic situation cannot be in Gabriel's best interests.
[3] As Mr. Banfield owns a 50% interest in the subject property, he is entitled to bring an Application for Partition and Sale. As such the Application will be scheduled for a full day hearing before me on November 1, 2024. The matter will be heard in person.
[4] The Applicant will file his Application Record by August 21, 2024. The Responding Record is due on September 30, 2024. Cross-examinations (if any) will be scheduled for Tuesday October 15, 2024 between 10:00 a.m. and 12:00 p.m. virtually. Each party will be entitled to one hour of questioning which shall be limited to the issue of whether partition and sale should be ordered and what should be paid out to each party from the sale. [Emphasis added.]
On August 23, 2024, Mr. Banfield commenced this proceeding for partition and sale of the Leila Jackson property. As noted above, Gilmore J. directed that the application be returnable before her on November 1, 2024.
Efforts to Schedule the Hearing of this Application for Partition and Sale
On October 28, 2024, Gilmore J. heard a request by Ms. Ristevska to adjourn the November 1, 2025 hearing date. She wrote:
[5] Mr. Mortazavi requests an adjournment on the following grounds:
a. The timetable ordered was deficient in that it did not provide sufficient time for undertakings or refusals to be dealt with or prepare a proper factum.
b. The Respondent requires certain documents from TD Bank and Scotiabank and has not yet received all of those documents. Apparently, those documents are intended to show that the Applicant has withdrawn amounts from the mortgage and line of credit that exceed his interest in the property and that he should therefore be precluded from requiring that it be sold.
c. Counsel for the Respondent has health issues which he continues to deal with. He is currently working reduced hours.
d. The mother of counsel for the Respondent has been ill and was recently released from the ICU. He and his family have been dealing with her care.
e. As I heard the mediation in this matter, I should not hear the partition and sale application as I have already expressed my view on this issue. [Emphasis added.]
Justice Gilmore provided the following analysis of the requests:
(7) Mr. Lahn did not strenuously oppose the adjournment request, however, I note the following:
a. Mr. Mortazavi's health issues were canvassed on August 1, 2024 and the November 1, 2024 date was set to accommodate those issues. There has never been any evidence filed to verify either Mr. Mortazavi's health issues or those of his mother.
b. There was no request until recently for an adjournment or request to vary the court ordered timetable. Mr. Mortazavi simply failed to file any responding material. It was the court who insisted that the matter of the adjournment be brought forward.
c. While it is true that I conducted a mediation in this matter, Mr. Mortazavi did not express any concerns about me hearing the partition and sale matter when it was set down on August 1, 2024. Indeed, this issue was canvassed with counsel.
d. I am concerned about further delay in this matter given my previous finding and concerns that the current living arrangement is not in Gabriel's best interests given the animosity between the parties.
e. The Respondent insists that the Applicant is not entitled to any proceeds on the sale and as such a sale should not be ordered. She requires documents which may not be available even on the new hearing date. The matter should not be adjourned further. If there are issues to be dealt with regarding the proceeds of sale, they may be dealt with on a reference. The issue on the Application is only whether the Property should be sold or not. Missing documents regarding any division of proceeds should not cause further delay in this matter. [Emphasis added.]
Justice Gilmore made the following order, in part:
[8] I will therefore grant the adjournment on the following terms noting that the timetable set out herein was arrived at on the consent of both counsel and is peremptory on both counsel:
a. The matter will be adjourned to January 6, 2025 for one day before a judge other than Gilmore, J.
b. Responding material is due on November 22, 2024 without exception.
c. Cross examinations will take place during the week of December 9, 2024. A date for the cross examination to be set by November 6, 2024. [Emphasis added.]
On the next day, Mr. Mortazavi requested an urgent hearing to set aside the new timetable and for other relief related to the two outstanding dependent’s support applications. Sanfilippo J. convened a case conference on November 5, 2024.
Ms. Ristevska submitted that this partition proceeding should be heard with the two dependent’s support applications. Justice Sanfilippo disagreed and ruled as follows:
[5] The number of hearings conducted in these related Applications is disproportionate to the issues raised by the parties and is inefficient. The discussions conducted at the Case Conference showed that it is in the common best interests of all parties, particularly the Minor, that the Banfield Partition Application and the Consolidated Proceedings be advanced to determination at the earliest opportunity. Justice Gilmore wrote in paragraph 2 of her Endorsement of August 1, 2024, as follows: "I am also concerned about further delay in the resolution of the living arrangements between the parties as the current toxic situation cannot be in [the Minor's] best interests."
[6] … First, the parties agree that the Jackson Terrace Property is not an Estate asset, having passed by right of survivorship outside of the Estate. Accordingly, I am not persuaded that the Banfield Partition Application needs to be heard at the same time as the Consolidated Proceedings. Second, the Ristevska Application is not ready to be adjudicated because Ms. Ristevska has taken no steps to advance the in non-compliance with the June 2024 Order. In my view it would be unfair to hold down the hearing of the Banfield Partition Application to await the development of the Ristevska Application when Ms. Ristevska has not taken steps to prepare her Application for hearing. Further, Ms. Ristevska submitted that the Estate has no assets. [Emphasis added. The words shown as removed were struck out by Sanfilippo J. at Ms. Ristevska’s request in a later hearing.]
At that case conference, Mr. Mortazavi also sought to defer the date for the hearing of this partition application set by Gilmore J. because Ms. Ristevska has encountered complications gathering evidence for this application. Justice Sanfilippo disagreed and ruled as follows:
[7] …I do not accept that this is a basis for adjournment. Ms. Ristevska has had ample time to prepare her responding submission and can raise with the Application Judge any issue that she claims to have impacted her response to the Banfield Partition Application. Third, Ms. Ristevska's counsel asked for a further adjournment of the Banfield Partition Application based on health issues that impact his ability to advance Ms. Ristevska's responding position.
Justice Sanfilippo determined to revise the schedule for the steps in this application to accommodate Mr. Mortazavi’s health issues. He held:
[11] The only special circumstance or material reason that I see for considering Ms. Ristevska's further adjournment request is the issue raised of her counsel's health. I will vary the timetable and hearing date for the Banfield Partition Application solely to accommodate this issue. I order that this timetable and hearing date shall be peremptory on all parties, such that all parties shall be fully committed to proceed in accordance with the revised timetable and no party is expected to request any further adjournment.
[12] Ms. Ristevska requested a variation to the June 2024 Order that set out a timetable for the development of the Consolidated Proceedings. The timetable set out in the June 2024 Order has not been complied with. Court ordered timetables are not a suggestion. They are an order. I will establish a new timetable for the development of the Consolidated Proceedings, with which the parties shall comply. [Emphasis added.]
Ultimately, Sanfilippo J. extended the time for Ms. Ristevska to deliver her evidence until December 5, 2024. He extended the deadline for cross-examinations and ordered that the cross-examinations “will take place on January 15, 2025.” He moved the hearing date to February 26, 2025 peremptory to both parties.
Ms. Ristevska did not deliver any evidence by December 5, 2024.
On Monday, February 24, 2025, the trial coordinator told counsel that the hearing could not proceed as scheduled and adjourned it to May 20, 2025. However, the next day, the trial coordinator rescinded that advice and confirmed that the hearing would proceed on February 26, 2025 as scheduled.
Mr. Mortazavi did not attend the hearing before Sanfilippo J. on February 26, 2025. He could not be contacted that day. Justice Sanfilippo therefore convened a case conference for March 6, 2025.
At the case conference on March 6, 2025, Mr. Banfield submitted that the application should proceed on an unopposed basis because Ms. Ristevska had not delivered any evidence despite the December 5, 2024 deadline (that had been extended at her request from a deadline of “November 22, 2025 without exception”).
In an endorsement dated March 10, 2025, Sanfilippo J. recited the responding submission of Ms. Ristevska that he accepted as a basis for providing one last extension to the schedule as follows:
[12] In seeking a further extension to the timetable in the Partition Application, Mr. Mortazavi and Ms. Ristevska committed that if Ms. Ristevska were provided with one further extension to deliver her responding materials, and if she failed to do so, Ms. Ristevska is agreeable to the Partition Application being heard unopposed. Ms. Ristevska sought a similar extension to deliver materials in the Consolidated Applications, with the understanding that if she should fail to do so, no further extension shall be expected.
[13] Having considered the parties' submissions, and in an abundance of fairness to Ms. Ristevska, a final extension will be provided for Ms. Ristevska to deliver responding materials in the Partition Application, which I order returnable on May 20, 2025, and a final extension will be provided to Ms. Ristevska to deliver materials in the Consolidated Applications. Ms. Ristevska committed that the Partition Application shall be heard unopposed if she fails to deliver responding materials within the extended time period provided, and understood that the further timetables in the Partition Application and the Consolidated Applications are peremptory on the parties. [Emphasis added]
Justice Sanfilippo scheduled the hearing of this partition application to proceed on May 20, 2025 peremptory to the parties. He extended the deadline for Ms. Ristevska to file her responding evidence to March 31, 2025. He directed that cross-examinations take place on April 15, 2025.
The extended deadlines passed without Ms. Ristevska delivering any evidence. Based on her commitment to Sanfilippo J., the application should then have proceeded on an unopposed basis.
The May 2025 Adjournment Request
On May 15, 2025, Ms. Ristevska sought an adjournment of the May 20, 2025 date before Papageorgiou J. Ms. Ristevska delivered a Notice of Motion to seek the adjournment. She did not deliver a supporting affidavit. The Grounds section of Ms. Ristevska’s Notice of Motion provided in part:
- The Respondent's counsel must take an urgent leave due to the ongoing personal problem, and he will be returning, tentatively, on Monday June 16, 2025.
- The Respondent's counsel was off 2-3 weeks in March 2025 owing to the same problem. As much as he tried to proceed with this matter to avoid an adjournment, but it is not possible, and he should take a leave.
- The Applicant and his counsel have been aware of the circumstances.
- The Respondent is proactive and intends to avoid an unnecessary court attendance and potential costs thrown away.
- The Respondent is an elderly senior citizen who can barely speak English, and she is experiencing dire financial circumstances caused by the Applicant who has abused the process and brought this vexatious application under the Partition Act.
- The Respondent has constitutional right to be heard.
- The Respondent is entitled to legal representation.
- The Respondent needs sufficient time to look for and retain a new counsel.
- Considering her age, language barrier, and significant financial limitation, the Respondent should be afforded more than sufficient and reasonable time to find and retain a new counsel.
- It is imperative for the Respondent to be afforded more than reasonable time to be represented by counsel and to make full submissions in response to the Applicant's vexatious application.
- The Respondent needs to retain a new counsel because her existing counsel needs to take an urgent leave and will not be able to act for the Respondent to prepare the submissions required and to attend the Hearing scheduled for May 20, 2025.
- The Hearing should be adjourned and the timetable reflected in the Endorsement of the Honourable Justice Sanfilippo dated March 10, 2025, ought to be amended such that the Respondent will be afforded more than reasonable time to find and retain a new lawyer, and for the new counsel to read and review substantial load of the existing materials, and to prepare the submissions required on behalf of the Respondent.
[Emphasis added.]
To be clear, it was Ms. Ristevska who asked for time to change lawyers due to Mr. Mortazavi’s need to take “urgent leave due to the ongoing personal problem.”
The June 18, 2025 Hearing – Ms. Ristevska asks for an Adjournment
At the outset of the hearing of the application on June 18, 2025, Mr. Mortazavi sought an adjournment.
His first submission was that I should take judicial notice of Israel’s terrorist attack on Iran. He submitted that he was distracted by the genocide and assassinations of his people in Iran.
He then submitted, without evidence, that Ms. Ristevska was unable to find a lawyer in the time provided to her by Papageorgiou J. He said that Ms. Ristevska now wants him to remain as her lawyer and, now that he has returned from his medical leave, he feels duty-bound to continue to act for her.
His third point was that he wants to proceed with a motion to set aside the endorsements of Papageorgiou J. due to her bias. He advised that both he and Ms. Ristevska will be filing complaints with the Canadian Judicial Council regarding unspecified conduct of Papageorgiou J. He was particularly upset that Papageorgiou J. told him to stop writing to the court about his assertion that Mr. Lahn had recorded the May 15, 2024 hearing on his computer.
Mr. Mortazavi submitted that Papageorgiou J. had refused to let Ms. Ristevska make submissions on May 15, 2025 and that the May 29, 2025 deadline was not enough time for her to make submissions. He said he needs an adjournment because Ms. Ristevska was barred from delivering material and he also needs to cross-examine Mr. Banfield. He wants to undermine Mr. Banfield’s credibility. He wants to show that this application is vexatious because Mr. Banfield has made several misrepresentations about his dealings with funds.
Mr. Mortazavi made no submissions about the relevant legal principles and provided no case law to support his client’s request for an adjournment. Mr. Lahn provided no law in response.
Legal Principles on Adjournment
Generally speaking, the issue on an adjournment motion is whether adjourning a proceeding is in the interests of justice considering all relevant factors. Khimji v. Dhanani. Case law provides numerous ways to recite or organize the relevant issues. I accept the following articulation by Weiler J.A. in Toronto-Dominion Bank v. Hylton, 2010 ONCA 752:
[37] Laskin J.A.’s passage [in Khimji] makes it clear that, in reviewing highly discretionary decisions such as whether to allow a request for an adjournment, the inquiry must focus on whether the court below took account of relevant considerations in balancing the competing interests and made a decision that was in keeping with the interests of justice.
[38] Against the backdrop of the nature of the proceeding and the parties to the proceeding, the court should consider the evidence and strength of the evidence of the reason for the adjournment request, the history of the matter including deliberate delay or misuse of the court process, the prejudice to the party resisting the adjournment and the consequences to the requesting party of refusing the request. [Emphasis added.]
Analysis and Decision
(i) The Strength of Evidence Supporting the Reasons for the Request
Ms. Ristevska delivered no evidence to support her request for an adjournment. I address the strength of the submissions made on the basis that they are unsupported by evidence. Factual assertions made by Mr. Mortazavi are not evidence and cannot be considered proven.
I do not need to make any findings on Mr. Mortazavi’s health or his level of distraction from his professional duties. I could not do so without evidence in any event.
The issue before me does not turn on Mr. Mortazavi’s health or whether he has a human right to have his clients’ matters repeatedly adjourned due to his inability to attend to scheduled events.
On May 15, 2025, Ms. Ristevska sought and obtained an adjournment of a peremptory hearing set for May 20, 2025. She sought the adjournment on the basis that she needed time to change counsel. Justice Papageorgiou ordered her to serve a Notice of Intention to Act in Person by May 20, 2025. She did not order Ms. Ristevska to retain new counsel or to deliver a Notice of Change of Lawyer. Rather, Ms. Ristevska asked for a final indulgence because she realized she needed to change counsel. She proposed it; the opposing party and the judge agreed to it; and the judge ordered it.
Ms. Ristevska was required to act in person pending retaining new counsel. Mr. Mortazavi, and whatever health issues he may have, were no longer to be issues before the court. Justice Papageorgiou refused an adjournment with Mr. Mortazavi remaining on the record as she noted presciently that, “there is no guarantee that if there is an adjournment and that the current counsel is still on the record that he will not require another adjournment.” And yet that is what has come to pass.
This is not the first time that Ms. Ristevska has acted contrary to an undertaking or commitment that she has made to the court. On March 6, 2025, Sanfilippo J. recorded that she, “committed that the Partition Application shall be heard unopposed if she fails to deliver responding materials within the extended time period.” Yet after failing to deliver evidence by the extended deadline of March 31, 2025, she has moved for extensions of time rather than accepting that the application will proceed on an unopposed basis as she committed.
Now, after agreeing to change counsel and being ordered to deliver her Notice of Intention to Act in Person by May 20, 2025 and her evidence by May 29, 2025, she asks for another adjournment and more time to deliver evidence and to cross-examine.
Under Rule 39.02(3) of the Rules of Civil Procedure the right to cross-examine must be exercised with reasonable diligence, i.e., within a reasonable time. Mr. Banfield’s Affidavit was sworn August 22, 2024. Cross-examinations were scheduled by Gilmore J. for October 15, 2024 between 10:00 a.m. and noon. That was extended first to the week of December 9, 2024, then to the fixed date of January 15, 2025, and then to April 15, 2025. All but the first date were scheduled on a peremptory basis and all were extended to accommodate Ms. Ristevska.
Under Rule 39.02(1), a party may only cross-examine the other side’s witnesses when she “has served every affidavit on which the party intends to rely.” Ms. Ristevska has not served her evidence nor waived her right to do so. Rather, she asserts that she has a constitutional right to deliver evidence. So she is not in a position to cross-examine yet in any event.
Moreover, this is an application for partition and sale. There is no controversy that the parties own the house as tenants in common. Each co-owner is prima facie entitled to an order for partition and sale. If Ms. Ristevska seeks to prevent an order for partition and sale, she bears the burden to establish that the court should exercise its narrow discretion to refuse relief on the basis that the claim is malicious, frivolous, vexatious, or oppressive. See Brienza v. Brienza, 2014 ONSC 6942, paras 22-27.
I agree with Mr. Lahn, that all the issues raised by Mr. Mortazavi on which he says he wishes to cross-examine deal with Mr. Banfield’s dealings with estate property and money. They do not relate to the availability of partition and sale for this house that is not part of the estate. Justice Gilmore already dealt with this in granting an adjournment on October 28, 2025 when she wrote:
If there are issues to be dealt with regarding the proceeds of sale, they may be dealt with on a reference. The issue on the Application is only whether the Property should be sold or not. Missing documents regarding any division of proceeds should not cause further delay in this matter.
I understand that Ms. Ristevska advances a claim, in the alternative to her dependent’s support claim, that Mr. Banfield holds his share of the house, or some portion of his share, in trust for her. There is no evidence before me or delivered in Ms. Ristevska’s application to support those alternative pleas. In any event, the applicant is content that the proceeds of sale be held pending the outcome of the monetary disputes between the parties on their merits. The proceeds will remain available to provide the correct amounts to each party.
Mr. Mortazavi submits that Ms. Ristevska could not retain counsel in time despite her best efforts to do so. There is no evidence before me to support this submission and I therefore cannot take it into account.
Mr. Mortazavi submits as well that as an elderly person with limited English, Ms. Ristevska had insufficient time to prepare evidence. However, she has had ten months. The first deadline by which her evidence was due was September 30, 2024. There is no evidence to say why she has not been able to adduce evidence in ten months. Last November Sanfilippo J. held that she had already had “ample time” to respond. Moreover, anticipating that Ms. Ristevska might have difficulty finding counsel, Papageorgiou J. specifically allowed for Mr. Mortazavi to assist her in preparing her evidence. She also allowed for new counsel to seek rescheduling if she or he needed it. The one event that was not allowed was Mr. Mortazavi remaining as counsel and Ms. Ristevska seeking yet another adjournment.
(ii) The History of the Matter including Deliberate Delay or Misuse of the Court Process
Ms. Ristevska has obtained three adjournments that were expressly granted on a peremptory basis. Justice Sanfilippo granted a “final” extension on March 10, 2025. Justice Papageorgiou ordered that hers was, “absolutely the last adjournment.”
As discussed below, Ms. Ristevska hopes to buy out Mr. Banfield’s interest in the house. That has been known throughout and remains available. But the parties cannot agree. That is why Gilmore J. scheduled a hearing of this partition application. Ms. Ristevska has repeatedly sought to delay the hearing of the partition application until all the dependent’s support issues are heard next October. She has repeatedly said so in her submissions supporting adjournment requests. But her requests to defer the partition application to the hearing of the other matters has been expressly denied by each of the judges whose endorsements are recited above.
Allowing a further adjournment in light of Ms. Ristevska’s breaches of her commitments made to obtain prior adjournments would amount to an abuse of the court’s process. So too would allowing her to ignore a scheduling deadline yet again. Justice Sanfilippo said that the scheduling deadlines are orders and not mere suggestions. Ms. Ristevska has ignored every deadline and repeatedly seeks to adjourn dates that were peremptory to her.
In my view, Ms. Ristevska’s conduct throughout the history of this application weighs heavily against granting a further adjournment.
(iii) The Balance of Convenience
One of the reasons given by Gilmore J. for requiring an earlier hearing of this partition application was to protect the best interest of the young child. There is no evidence before me about the toxicity of the living arrangements or the antagonism demonstrated between the adult parties. But I see an application where a grandmother seeks to evict her grandson and son-in-law and a competing application where the father and child seek to evict the deceased mother’s mother. Both sides seek to kick the other side out of the house. Neither can leave voluntarily without being seen to capitulate. On that basis alone I would accept the concerns expressed by Gilmore J. (although I would defer to her holdings in any event).
For his part, Mr. Banfield has been trying to have the application heard for almost a year only to be faced with delay after delay. Some of the effects of the delay can be compensated in a costs award if Mr. Banfield succeeds in the application. But he too is entitled to justice not only being done but being seen to be done. He has had to watch helplessly as the application limped from adjournment to adjournment without receiving the order to which he is prima facie entitled and with no evidence to the contrary ever being filed.
On the other hand, if Ms. Ristevska is denied an adjournment, the application will proceed without opposing evidence. She agreed to that outcome two adjournments ago before Sanfilippo J. She also had the assistance of Mr. Mortazavi to represent her before the court despite being ordered to deliver a Notice of Intention to Act in Person.
In all, I am most swayed by the desirability to have this matter heard to try to bring some certainty to the child’s living arrangements. I am also concerned to bring this application to a hearing well before the other matters are set to be heard in the fall. This will focus the parties on dependent’s support. It will exclude the extraneous issues of possession of the house and the possibility of a buy out being seen as bargaining chips in their competing claims against the estate.
Finally, in my view, allowing Ms. Ristevska yet another adjournment despite her breach of commitments to the court previously would reward her misconduct. She made commitments to support indulgences granted to her. It would be an abuse of the court’s process to allow her to walk away from her commitments again.
On the most general level, Ms. Ristevska’s material was due last September and then on a peremptory basis in December. There is simply no evidence proffered by Ms. Ristevska to justify further delay.
The request for an adjournment is therefore dismissed with costs being dealt with at the end of these reasons.
Partition and Sale
Section 2 of the Partition Act, RSO 1990, c P.4 subjects all co-owners of property in Ontario to the risk of suffering partition and sale. Section 3 of the statute allows anyone with an interest in land to apply for partition or sale.
As mentioned above, the case law provides that an order for partition and sale is prima facie available to co-owners. There is a narrow opportunity for the court to exercise the discretion to refuse to make the order sought if the responding party establishes a good reason for the court to do so. But the burden on the responding party is to establish significant wrongdoing by the applicant seeking the order. It is not enough to show that sale may cause the respondent to suffer some inconvenience or hardship. The respondent needs to go further and establish, on admissible evidence, that the application is frivolous, vexatious, malicious, or oppressive. See: Latcham v. Latcham, para 2.
Mr. Banfield submits that the application is unopposed and should therefore be granted as he has established the precondition of common ownership.
I heard Mr. Mortazavi’s submissions on the merits despite the commitments made by Ms. Ristevska. That way, I have taken off the table her concerns about that commitment at least.
Mr. Mortazavi’s first submission to respond to the merits of the partition application is that there are many errors in prior orders of judges that need to be corrected. Without evidence, he took me through his diligent efforts to advance the parties’ claims through judicial mediation and then through various scheduling orders. He says his health was not the issue in most of the adjournments sought previously. He said prior counsel for Ms. Ristevska did nothing to advance the case before he was appointed in April, 2024 and then prior counsel would not release the file until Mr. Mortazavi obtained an order on April 11, 2024.
I have only dealt with the facts and proceedings subsequent to the retainer of Mr. Mortazavi. I do not deal with his health at all. I do not see how any of his concerns about prior orders affect the merits of the partition application.
Mr. Mortazavi submits that Mr. Banfield refused to attend for cross-examination and that he needs to cross-examine Mr. Banfield to attack his credibility particularly around his improper use of estate funds. Again there is no evidence to support this assertion.
In all the scheduling endorsements prior to today, there was never any discussion of a failure or refusal of Mr. Banfield to attend for cross-examination. Ms. Ristevska kept asking for more time to deliver her own evidence. I see no indication that Mr. Mortazavi delivered a Notice of Examination before filing evidence. In fact, his arguments are inconsistent. He cannot claim that Ms. Ristevska has been denied cross-examination while asserting she still needs time to deliver evidence. She was not entitled to cross-examine until she delivered all affidavits on which she intended to rely. She would have had to waive her right to deliver affidavit evidence to then move on to cross-examination.
The time for assertion of a problem with securing the attendance of Mr. Banfield for cross-examination was surely before committing to Sanfilippo J. that if Ms. Ristevska did not deliver her evidence by March 31, 2025, then she would not oppose the application.
Finally, there is no credibility issue with Mr. Banfield’s evidence that the parties own the property as tenants in common. That fact is admitted and is not a fact in issue. The questions about how Mr. Banfield dealt with estate assets and money all go to the dependent’s support issues that will be heard in October in the other applications. This application has no effect on whether Ms. Ristevska can cross-examine Mr. Banfield on relevant issues in the remaining applications.
Mr. Mortazavi then submits that this application is frivolous because both parties claim interests in the house. If Ms. Ristevska succeeds, he submits, Mr. Banfield may have only a modest interest which can be paid without selling the house.
Mr. Mortazavi also submits that his client wants to buy out Mr. Banfield’s interest in the house. Ordering the sale of the house now prejudices her ability to make an offer when market conditions are propitious in her view.
The fact that the parties are litigating about money and their respective shares in the house do not make this application frivolous. The parties are living in the house and both seek to evict the other. They cannot settle. If Ms. Ristevska is waiting for market conditions to change to make settlement more attractive, that is her business. It is not a basis to refuse an order for partition and sale.
Mr. Mortazavi then submits that his client will have nowhere to go. She owns a rental property but there is no evidence about whether there are any units vacant. As owner, she has a right under the Residential Tenancies Act to evict a tenant so she can live there herself. But that can take time.
There is a dispute over which of the parties is paying the ongoing operating costs for the Leila Jackson Terrace house. Mr. Mortazavi submits that his client has been paying all the utilities and operating costs except the mortgage since her daughter passed away in 2019. This submission, again made without evidence, seems inconsistent with the endorsement of Gilmore J. dated May 2, 2024 that recorded Ms. Ristevska’s reluctance to the imposition of a requirement that the parties share all costs. Nevertheless, taking the submission at face value, I do not see the prejudice in moving from a situation where Ms. Ristevska says she is funding all upkeep costs for a house with three people to a situation where she will be required to pay for herself only.
Mr. Mortazavi then submitted, again, that this application should be heard with the parties’ competing dependent’s support issues in October. He submits that the issues are closely related. That request has been denied by all the prior judges without any appeal and by me for reasons set out above that I will not repeat.
Finally, Mr. Mortazavi reiterated his submission that if I should deny an adjournment (as I have) Ms. Ristevska will not be able to defend her position. The hearing will deny her a fair process to show that the proceeding is vexatious. Mr. Mortazavi undertook that Ms. Ristevska will comply with any timetable to the best of her ability. But he submits, she cannot advance her defences to this proceeding without putting in evidence and conducting cross-examination. This is just another argument for the adjournment that I have already denied. Ms. Ristevska has had more than a fair opportunity to adduce evidence in this proceeding.
In my view, the applicant is entitled to the order sought. There is no evidence to support a finding that this application is frivolous, vexatious, malicious, or oppressive or anything of like impact. Even listening to Mr. Mortazavi make factual submissions without supporting evidence, he did not raise anything like the type of response needed to support the exercise of discretion to decline an order for partition and sale. Any hardship or inconvenience to his client is implicit in moving to a new house or apartment. While Mr. Mortazavi says that his client is ready to offer to buy out Mr. Banfield, nothing stops her from making any offer she wishes to make. But it takes two to make an agreement. If her offer is acceptable to Mr. Banfield, then the case may settle. If any offer made continues to be unacceptable to Mr. Banfield, then the parties will still be at the same place where Gilmore J. told them over a year ago that, “the sole jurisdiction of the Court would be to sell the property.”
Order
In his draft order, Mr. Banfield proposes that he be given carriage of the sale process to be exercised in accordance with recommendations of the listing agent. Both parties have an interest in maximizing the value of the sale proceeds. But I agree with Mr. Lahn, that given Ms. Ristevska’s tactical approach to date, including repeatedly trying to defer a sale until after the dependent’s support hearings in October, ignoring court ordered schedules, and breaching her own commitments, I have to infer that if Ms. Ristevska is involved in the sale process, there will be ongoing disputes and roadblocks erected to impair an efficient sale.
I do not accept Mr. Banfield’s proposal that Ms. Ristevska pay costs or maintenance costs from the sale proceeds yet. The monetary issues will be subject to settlement or resolution in due course.
Accordingly, I agree with paras. 1, 2 (a) through (g), 3, 4, and 6 of the proposed draft order at Document A (19) of the Master Bundle on Case Center for this application at page A412.
In place of para. 2 (h) of the draft, I order that the proceeds of sale be held by the real estate lawyer who is retained by Mr. Banfield to complete the sale. The lawyer should be independent of the parties’ current law firms. The lawyer may use the sale proceeds to pay sales commission, reasonable and normal costs of sale, and reasonable legal fees incident on the sale. The net sale proceeds remaining after payment of these costs of sale shall be held in trust by the lawyer until all parties agree in writing to a direction for their release or the court so orders.
Costs
The lawyers tell me that there are offers to settle outstanding that may affect a costs award. Mr. Mortazavi asks for an opportunity to make oral submissions on costs. I see no reason to depart from the practice in this court to hear costs issues in writing. The applicable principles are well known.
Mr. Banfield may deliver costs submissions by July 4, 2025. Ms. Ristevska may deliver costs submissions by July 18, 2025.
Costs submissions may be no longer than 900 words (roughly equal to three pages). They are to be double spaced with margins of at least 2.54 cm and a font size of 12 or more. All costs submissions shall be accompanied by a Costs Outline. The parties may also deliver copies of any offers to settle on which they rely. No other documents are to be delivered.
On July 21, 2025 I will read the proper costs submissions and related documents delivered by the scheduled dates.
Released: June 23, 2025
Frederick L. Myers