Court File and Parties

CITATION: Del Valle Ferro v. Pinto Guerrero, 2026 ONSC 2544

COURT FILE NO.: CV-23-00002709-0000

DATE: 2026-04-29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RE: EFRAIN ALBERTO DEL VALLE FERRO, Applicant

AND:

HERMINIA PINTO GUERRERO, Respondent

BEFORE: Justice A. K. Mitchell

COUNSEL: P. Morrissey, for the Applicant Respondent, self-represented (not appearing)

HEARD: April 27, 2026, via videoconference

Endorsement

Overview

[1] This endorsement is further to my endorsement dated April 27, 2026 granting the application and ordering partition and sale of the jointly owned, former matrimonial home of the parties municipally described as Unit 29, 11 Conway Drive, London, Ontario, N6E 2H4 (the “condo property”).

[2] As noted in my earlier endorsement, the respondent (self-represented) did not appear at the special appointment hearing of this matter held on April 27, 2026. This date was set by Garson J. on December 19, 2025. The endorsement of Garson J. and the Certificate of Readiness with respect to the scheduled special appointment date were served on the respondent by email to the address noted in the respondent’s (Cross) Application Record dated November 29, 2023 (hermi_pinto@hotmail.com) on December 22, 2025. No response was received by applicant’s counsel to this communication.

[3] Confirmation of the April 27, 2026 hearing date was sent by email to the respondent on April 21, 2026. No response was received by applicant’s counsel to this communication.

[4] The videoconference “link” for the virtual hearing conducted April 27, 2026, was provided by email to the respondent at 10 a.m. on April 27, 2026. No response was received by applicant’s counsel, and the respondent did not join the virtual hearing[^1].

[5] These are my reasons for granting the relief requested on this application.

[6] On this application, the applicant sought an order for the partition and sale of the condo property. The application was commenced on November 8, 2023. The respondent served a notice of appearance and issued and served a Respondent’s Application Record (“respondent’s record”) on November 29, 2023.

[7] The respondent’s record included her notice of appearance and notice of application/respondent’s counterapplication. In the index to the respondent’s record, reference is made to an “Affidavit of Herminia Pinto Guerrero” and “Exhibits”, and a notation indicates that both are: “TO BE PROVIDED”.

[8] Notwithstanding the requests of applicant’s counsel, the respondent did not provide/serve and file evidence to support the relief requested in her notice of counter application. Her affidavit remains outstanding.

[9] In an effort to move these proceedings forward, the applicant brought a motion seeking an order timetabling all next steps in this proceeding so as to ready the matter for a hearing on its merits.

[10] Notice of the time-tabling motion was served on the respondent by email. No response was received, and the respondent did not attend on the return of the motion.

[11] On the return of the motion on May 23, 2025, MacFarlane J. endorsed a timetable in her order of the same date. Included in the timetabling order was a requirement that all cross-examinations on affidavits be completed by June 30, 2025.

[12] In an effort to be fair to the respondent, applicant’s counsel endeavoured to obtain her evidence under oath to support the grounds set forth in her notice of cross-application. The applicant served the respondent with notice of cross-examination on May 28, 2025, with respect to an examination scheduled for June 19, 2025. The examination date was confirmed by applicant’s counsel by email sent to the respondent on June 9, 2025. The respondent did not attend the cross-examination as scheduled. The applicant obtained a certificate of non-attendance.

[13] As noted above, the April 27, 2026 hearing date for this application was scheduled in December 2025 with notice of the return date for this application (and cross-application) provided to the respondent.

[14] I am satisfied that the respondent has received due process over the course of these proceedings yet has chosen not to avail herself of any of it.

Background

[15] The parties are former spouses. They were married on February 16, 1985, in Colombia.

[16] The parties share two children both of whom are adults.

[17] The parties purchased the condo property as joint tenants on October 27, 2006 for $106,000. The purchase price was financed with a mortgage in the amount of $103,469 repayable in bi-weekly instalments of $416 each (the “mortgage”).

[18] The applicant paid the downpayment and expenses associated with purchasing the condo property. Until 2014, the applicant made all payments associated with the mortgage.

[19] The parties separated in October 2008. The respondent continued to reside in the condo property post-separation. In 2011, the applicant moved to Calgary, Alberta where he worked and continued to make payments on account of the mortgage.

[20] In 2014, the applicant moved back to Colombia where he continues to reside. At that time, the applicant ceased making payments on the mortgage. The parties were divorced on August 8, 2016.

[21] No family law support or property proceedings were commenced by either party against the other. No property or support orders exist.

[22] The parties jointly own a property in Colombia where the applicant currently resides. The applicant and the respondent agreed to transfer title to the Colombia property to the name of the applicant, solely, and, in exchange, to transfer title to the condo property to the name of the respondent, solely.

[23] Notwithstanding their agreement, the transfer of title to the properties did not occur.

[24] The applicant brings this application for partition and sale of the condo property so as to reduce his exposure to liability for payment of the mortgage and other expenses associated with the condo property (for example, property taxes). The current balance outstanding on the mortgage is $29,984.44.

Analysis

[25] Rule 66.01(1) of the Rules of Civil Procedure permits a person entitled to do so to commence a proceeding to partition or sell land under the Partition Act, R.S.O. 1990, c.P.4. (the “Act”).

[26] Section 2 of the Act, provides:

All joint tenants…and all parties interested in, to or out of any land in Ontario may be compelled to make or suffer partition or sale of the land or any part thereof, whether the estate is legal and equitable or equitable only.

[27] Section 3(i) of the Act permits any person in Ontario to bring an action or make application for the partition of such land or for the sale thereof under the directions of the Court, if such sale is considered by the Court to be more advantageous to the parties interested.

[28] I find that the applicant as joint owner of the condo property has standing to bring this application. I further find that the applicant has a prima facie right to a sale of the condo property[^2].

[29] The courts have held that partition and/or sale of property may be refused only in exceptional circumstances. Such circumstances include where the party requesting partition and/or sale has engaged in malicious, vexatious, or oppressive conduct.[^3]

[30] No evidence is before the court that would disentitle the applicant to the requested relief in the circumstances of this case.

Disposition

[31] Application granted. Cross-application dismissed.

[32] Judgment shall issue on the following terms:

1. The property municipally described as Unit 29, 11 Conway Drive, London, Ontario, N6E 2H4 (the “Property”) shall forthwith be sold.
2. The applicant shall, in consultation with the respondent, retain a listing agent/real estate broker (the “Broker”), of his choosing, to list the Property for sale on such reasonable terms and conditions, including the sale price, as the Broker, acting reasonably, recommends to the parties.
3. The Broker shall develop a marketing plan for the sale of the Property commensurate with marketing plans for the sale of comparable properties.
4. The applicant is hereby permitted to execute any listing agreement on the parties’ behalf.
5. The Broker shall be permitted access to the Property for the purpose of readying the Property for sale and once listed, showing the Property to prospective purchasers on such reasonable dates and at such reasonable times as the Broker may determine in their absolute discretion, upon 24 hours’ advance notice to the respondent.
6. The Broker shall take all reasonable steps to market the Property so as to obtain the best offer for the purchase of the Property.
7. The applicant is hereby permitted to execute any agreement of purchase and sale and all other documents required to transfer title to the Property to the purchaser, on the parties’ behalf.
8. The respondent shall provide vacant possession of the Property on the closing date for the sale of the Property.
9. The net proceeds of sale after the payment of real estate commission, lawyers’ fees, encumbrances, including but not limited to, mortgages, security interests, property taxes, etc. shall be paid to the applicant’s lawyer, “Philip B. Morrissey, in trust”, and shall be distributed in accordance with the agreement of the parties or further order of this court.
10. All further issues arising between the parties pertaining to the sale of the Property and/or distribution of the net sale proceeds, shall be determined by the Court on motion for directions brought in this proceeding.
11. The respondent shall pay to the applicant his partial indemnity costs of this proceeding fixed in the amount of $12,585.38 (inclusive of fees, disbursements and HST).

[33] The applicant shall submit to my attention for approval a draft Judgment which incorporates the terms set forth in the above paragraph. The approval of the respondent to the form of such Judgment is hereby dispensed with.

Justice A.K. Mitchell

Date: April 29, 2026.

[^1]: The hearing was concluded at 10:50 a.m. [^2]: Davis v. Davis, 1953 148 (ONCA) at p.29/ [^3]: Economopoulos (Re), 2014 ONCA 687 at para. 89; and Peraziana v. Savage, 2024 ONSC 217 at para. 129.