Soohochoff v. McCaffery, 2010 BCSC 1831

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Soohochoff v. McCaffery , 2010 BCSC 1831 Date: 20101220 Docket: 10 2551 Registry: Victoria Between: Deric Soohochoff Petitioner And: Ann Marie McCaffery Respondent Before: Master McCallum Reasons for Judgment Counsel for Petitioner: C. G. Robb Counsel for Respondent: H. Fisher Place and Date of Hearing: Victoria, B.C. December 1, 2010 Place and Date of Judgment: Victoria, B.C. December 20, 2010 INTRODUCTION [ 1 ] The respondent is the legal owner of a piece of property.

She agrees she holds an undivided one half interest in the property in trust for the petitioner. The petitioner brought this proceeding under the Partition of Property Act for an order requiring the respondent to sell her interest in the property to him. [ 2 ] The respondent says she wishes to purchase the petitioner’s interest in the property and that he is indebted to her for his share of expenses she paid to maintain the property.

The respondent brought this application asking for an order that the registrar conduct an accounting of expenses incurred by her by virtue of her ownership of the property. [ 3 ] For the reasons that follow, the application is dismissed with costs to the petitioner as costs in the cause. BACKGROUND [ 4 ] The petitioner and respondent agreed to purchase an interest in real property in 2002. They agreed that the petitioner would be the legal owner of the property.

They executed a Declaration of Trust on March 26, 2002, agreeing that the respondent would hold one half of her interest in the property in trust for the petitioner on certain terms. The terms are controversial but irrelevant for the purposes of this application. [ 5 ] The parties lived together on the property until 2005 and each made various contributions to the property financing and maintenance. Not surprisingly, some of the contributions were by payment of money and others were in the form of labour.

They disagree about the nature and extent of those contributions. [ 6 ] The petitioner left the property sometime in 2005. The respondent remained on the property and has continued to maintain it. She says she has contributed over $250,000 towards the purchase, improvement and maintenance of the property since the original purchase. She says the petitioner has spent no more than $50,000 on property expenses since the purchase. The respondent says the petitioner has not indemnified her for her expenses, contrary to the provisions of the Declaration of Trust.

She is opposed to the petitioner purchasing her interest in the property or a sale generally as the property has been her home since its acquisition. [ 7 ] The petitioner says that none or very few of the respondent’s claimed expenses were made with his prior authority as required by his

interpretation of the Declaration of Trust. He says that he wishes to purchase the respondent’s interest in the property for one half of its fair market value. The petitioner and respondent disagree about the fair market value of the property.

DISCUSSION [ 8 ] The petitioner brought this proceeding pursuant to the Partition of Property Act , R.S.B.C. 1996, c. 347. The Act provides a code to deal with disagreements between owners of property. The respondent says that if there were an accounting now, prior to the hearing of the petition, that the court would be better able to deal with the appropriate remedy at that hearing. [ 9 ] The petitioner says that the court hearing the petition can make all the necessary orders under the Act without an accounting.

He believes the accounting will be unnecessary if the court adopts his position that any expenses incurred by the respondent were incurred without his prior authority. [ 10 ] It may be that the court will be required to determine the parties’ respective contributions to the property in order to deal with any proceeds of sale. If that is so, the petition court can determine whether that process is best accomplished through some sort of hearing before the registrar.

It might order an accounting similar to that requested by the respondent on this application or a more broadly based reference in specific terms. [ 11 ] It is clear from the evidence on this hearing that there is little agreement about the terms of the parties’ arrangement or their respective contributions to the property. There are legal issues to be determined concerning their rights and obligations under the Declaration of Trust before the court can decide what issues, if any, might expediently be determined by some sort of hearing before the registrar.

CONCLUSION [ 12 ] The court hearing the petition must undertake that process before a decision is made about the propriety or effectiveness of a hearing before the registrar. An accounting of the respondent’s contributions to the property, as requested in the application, will not assist the court at this stage. The court hearing the petition will be in the best position to decide if there ought to be some sort of accounting or reference and stipulate the terms of such a hearing. [ 13 ] The application is dismissed. Costs to the petitioner as costs in the cause. “W. McCallum” Master W. McCallum