Bukhari v. Bukhari, 2025 ONSC 726
COURT FILE NO.: CV-24-148
DATE: 2025-02-03
SUPERIOR COURT OF JUSTICE
Title of Proceedings:
Syed Azadar Bukhari v. Nadia Muneeb Bukhari
Counsel:
Jennifer Ng, for the Applicant
Shahzad Siddiqui, for the Respondent
Before:
C. MacLeod
Date Heard: January 30 & 31, 2025
Reasons for Decision
1This is an Application under the Partition Act in relation to property located at 63 Hiscock Blvd. in Scarborough, Ontario. The Application was originally returnable in Kingston in June of 2024 and then in September of 2024 at which time it was again adjourned with an amended litigation timetable. By order of Justice Kaufman, the hearing was to take place in person on January 30, 2025 but counsel for the Respondent was delayed in arriving. Accordingly, the hearing took place in person in Kingston on January 30th and continued virtually on January 31st.
2There is a somewhat complicated history to this matter. The Applicant was found to be a 50% owner of the property under a form of trust document in 2015 (2015 ONSC 16). At that time, Justice Edwards ordered the Respondent to register a transfer for the 50% interest and ordered a certain status quo to continue pending a judicial interpretation of the trust. The parties are now the registered owners and hold the title as tenants in common.
3In 2019 the Application to interpret the trust agreement came before Justice Fowler Byrne. Fowler Byrne, J. issued a judgment interpreting the trust, regulating the financial obligations between the parties and confirming the joint ownership (Court file CV-2705-1 [1] unreported decision dated October 25, 2029).
4That judgment dealt with adjustment of payment obligations between September 30, 2010 and April 30, 2018 and resulted in judgment against the Applicant for his share of those payments after certain setoffs (approximately $44,000). The judgment also directed that the Applicant pay half of the mortgage payments, property taxes and insurance going forwards. Some of the carrying costs were to be offset by the Applicant’s share of rent which was to be collected by the Respondent. The Applicant was also ordered to pay costs.
5The court further declared that unless the parties agree that one may buy out the other, the Applicant would be entitled to compel the sale of the property pursuant to the Partition Act. The order contemplated that if either party failed to pay obligations as set out in the judgment, that issue would be addressed when the property was eventually sold.
6The order contained the following terms:
(t) If either party fails to pay the other as per their obligations herein, they shall deduct what is owing from the other's share upon the sale of the Property;
(u) In the event the subject property is sold, each of the Applicant Nadia Muneeb Bukhari a.k.a. Nadia Saqlain and Respondent Syed Azadar Hussain Bukhari shall be entitled to an equal share of the proceeds of sale, following their equal payment of all registered encumbrances, property taxes, real estate commission, real estate legal fees, subject to any adjustment pursuant to subparagraph 34(t) herein; …
7I note that the Respondent has been represented by the same counsel throughout these proceedings (she was the Applicant in the earlier proceedings). Counsel is well aware of the background and the Respondent should be in a position to readily calculate the amounts she claims remain owing under the judgment or the obligations said to have accrued since that time. While I was not provided with a list, the Respondent alleges that the Applicant owes her more than $100,000 and only recently paid the costs award.
8For his part, the Applicant acknowledges he was supposed to pay his share of expenses on an ongoing basis. He argues, however, that the order requires the Respondent to provide him with copies of bills and statements and requires him to pay within 30 days thereafter. He has never received such information. The Respondent agrees she did not send the information but alleges that she knew he would not pay her and did not want to waste her time. Neither of those arguments are persuasive. The Respondent should have complied with her obligation to provide the bills. The Applicant could easily have asked for the documents and sent an estimated amount in the interim. The fact is the parties have not made any attempt to cooperate with each other. It is also undisputed that the Applicant has failed to make any payments. He has not paid the amounts he was found to have owed at the time of the hearing in 2019 and he has not contributed to the carrying costs since that date.
9The Respondent characterizes the failure of the Applicant to contribute to the costs as wilful disobedience to a court order. She also argues that the increase in equity funded solely through her contributions results in unjust enrichment of the Applicant. She therefore argues that the court should exercise its discretion not to order a sale. She argues the Applicant has behaved in a manner that is malicious, vexatious or oppressive. She cites Dhaliwal v. Dhaliwal, 2020 ONSC 3971 and Gartree Investments Ltd. v. Cartree Enterprises Ltd. as authority.
10Both of those cases state that either co-owner of property is presumptively entitled to an order for sale but identify circumstances in which a sale should either be refused or delayed because of the conduct of the moving party or because the sale would create a situation of injustice.
11While I accept that the court has the discretion to withhold a Partition Act remedy if it would be unjust to grant it, I note that Dhaliwal also involved the Family Law Act and Gartree the Partnerships Act. Although there was a form of trust agreement, there are no family law issues involved with this property and the parties are not business partners. They are simply joint owners of this property and one of them owes the other a substantial amount of money but one which can easily be satisfied out of his share of the sale proceeds if the property is sold.
12The Respondent complains that she has solely maintained and managed the property since she purchased it. This ignores the fact that in the first litigation she resisted the finding that the Applicant was a joint owner. In the second round of litigation, she asked for (and was granted) the right to make unilateral decisions about rent, mortgage and other matters. In effect she was granted the authority to manage the property at her own request. She also attests that it is now difficult for her to find documents to substantiate the amounts owed. As a joint owner of property that will ultimately have to be sold and over which she has been given the right to make unilateral management decisions, she should have been keeping proper records.
13In my view the failure to contribute to the carrying costs is something that can easily be addressed in “damages” which is to say repayment of what is owing and perhaps by appropriate adjustments to the pre-judgment or post-judgment interest rates if the Respondent incurred borrowing costs. She may even have an argument for compound interest. [2] I am not deciding that issue. I simply make the point that money is an adequate remedy. The evidence does not support a finding of malicious or oppressive conduct. There is no evidence of particular hardship that cannot be addressed by adjustment of the amounts owing to each party.
14In addition, many if not all of the issues raised by the Respondent were before the court in the prior proceedings. The most recent judgment contemplates what should happen if payments are not made and also contemplated this application under the Partition Act would be made. The judgment provides that the Applicant is entitled to access his equity in the property and the Respondent is entitled to have him satisfy 100% of his obligation to her out of his share of the proceeds of sale. The Application was started early last year and has been delayed by repeated adjournments.
15No good purpose is served by compelling the parties to continue as co-owners of property that has spawned over a decade of litigation. To the contrary, ending the co-ownership and ending the possibility of ongoing accrual of inter-party obligations will bring this matter to an end.
16The failure to meet obligations in a timely manner in the circumstances of this case, is not a reason to compel these parties to remain as co-owners. Accordingly, there will be an order for sale of the property under the supervision of an Associate Judge in Toronto should that be necessary and a reference for that purpose. The Referee will not have to take active steps if the parties can agree on a sale process. The Referee shall be empowered to make all necessary orders and take all necessary steps to supervise the sale including, if necessary, designating one party as the agent of the other, appointing a third party to complete the sale or any of the methods contemplated by Rule 55.06.
17The Respondent still has the option to offer to purchase the property for one half of the market value less the amount owed to her if she can obtain the necessary financing and make an acceptable offer. That has always been an option. The Court does not have the authority to compel a buy out under the Partition Act although there may be instances where that has been done in the exercise of inherent jurisdiction if equity demands it. This is not such a case.
18There will also be judgment directing a reference to an Associate Judge in Toronto to determine what is owing between the parties and what adjustments may be required to the amounts owing to each party. The accounting may take place before the sale is concluded or the two may proceed together in the discretion of the Referee.
19Subject to any direction from the Referee pursuant to Rule 55.02, the Applicant shall have carriage of the references and shall immediately obtain a date from the Office of the Associate Judges in Toronto for a Hearing for Directions. The request for a date should be sent by email with a copy of these reasons, the judgment and the two previous court rulings.
20The address for the Office of the Associate Judges is: Masters.LongMotions@ontario.ca.
21The Referee may determine the costs of the Reference or references.
22The Applicant is entitled to costs of this application. I have reviewed the costs outline submitted by the Respondent and the Bill of Costs submitted by the Applicant. In consideration of the numerous court appearances required to get to this point, I would fix those costs at $8,600.00 on a partial indemnity scale.
23I understand there was a Rule 49 offer or other offer to settle. If that is the case and if either party wishes to argue for a different costs award, I reserve the power to revisit the costs award providing I am so advised within the next 30 days.
24I have signed the draft order with necessary modifications.
C. MacLeod
Date: February 3, 2025
Endnotes
1The court documents identify this as a Toronto file number although counsel advise that the hearing was in Brampton. It is not clear why the parties have elected to litigate in different parts of the province over land located in Toronto.
2MDS Inc. v. Factory Mutual Insurance Company, 2021 ONCA 594.