Tabatha Ann Beck, Applicant – v. –, 2023 NBKB 182

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK JUDICIAL DISTRICT OF MONCTON FAMILY DIVISION 2023 NBKB 182 FDM-706-2019 BETWEEN: Tabatha Ann Beck, Applicant – and – Bobby Joseph Crossman Respondent. DECISION BEFORE: Justice Colette M. d’Entremont AT: Moncton, New Brunswick DATE OF HEARING: September 29 th , 2023

DATE OF DECISION: September 29 th , 2023 APPEARANCES: Patrick Grew for the Applicant. Respondent was not represented and did not attend the hearing. D’ENTREMONT, J (ORALLY) INTRODUCTION: [ 1 ] The Applicant, Tabetha Ann Beck is requesting an order for the sale of property held in joint tenancy with the Respondent, Bobby Joseph Crossman and for the distribution of the proceeds of sale. The motion is based on Rule 67 of the Rules of Court of New Brunswick . FACTS: [ 2 ] Ms. Beck and Mr. Crossman commenced cohabitating in 2001, and they were married on October 27 th , 2007.

They separated October 1 st , 2012, and they were divorced on November 18 th , 2019. [ 3 ] In 2001, Ms. Beck and Mr. Crossman acquired the property, being PID 70004874, having civic address 446 Weisner Road, Lakeville - Westmorland, New Brunswick. The title to the property was registered in joint tenancy. The property is a residential lot on which a single family dwelling is located.

It is described as, “All that certain lot, piece or parcel of land situate, lying and being on the West Side of Weisner Road in the Parish of Moncton, County of Westmorland, and Province of New Brunswick, and being lot 74-21 as shown on a plan entitled “Birch Grove Subdivision” registered in the Westmorland County Registry Office on the 17 th day of February 1975, as number 9520. [ 4 ] The purchase of the property was financed by the Toronto Dominion Bank. The bank registered a mortgage against the property to secure the funds advanced. Both parties were mortgagors on the mortgage registered against the property.

The original mortgage was in the principal amount of $126, 684. [ 5 ] A judgement in favour of the Toronto Dominion Bank dated February 22 nd , 2018, encumbers the property. The judgement is against Mr. Crossman although both parties were listed as defendants in the original pleadings. [ 6 ] On December 14 th , 2018, Ms. Beck declared bankruptcy. She believed the bankruptcy had released her from the mortgage in favour of the Toronto Dominion Bank. It did not do so. Generally, a secured creditor may ignore the bankruptcy and deal with it’s security in the usual manner. (2021 – 2022.

Annotated Bankruptcy and Insolvency Act , Houlden and Morawetz.) The TD Bank holding the mortgage registered against the property was a secured creditor.

[ 7 ] Since the separation in 2012, Ms. Beck has asked Mr. Crossman to refinance the property, and to have her released from the mortgage. She has asked that her name be removed from the title. Mr. Crossman has failed to cooperate in this regard. [ 8 ] Mr. Crossman has continued to live in the home located on the property. Ms. Beck thought the bankruptcy had erased her liability on the mortgage and she believed she had no interest in the property. Therefore, the division of the property was not dealt with when the Divorce was granted. [ 9 ] Ms.

Beck is unable to re-establish her credit and she is unable to borrow money or obtain a credit card as she is still a registered owner of the property, and she is still liable on the mortgage in favour of the Bank. [ 10 ] Ms. Beck is a joint tenancy owner of the property. Ms. Beck is asking for an order for Sale under Rule 67 . She is asking that the lands and premises at 446 Weisner Road, Lakeville, Westmorland be sold pursuant to Rules 67.02(

c) and under 16.04 (

h) of the Rules of Court of New Brunswick . She is requesting that the proceeds of the sale be distributed as follows:

a) To pay the real estate fees and the legal fees relating to the sale;

b) The balance of the mortgage, in favour of the T-D Bank be paid as of the date of sale;

c) The judgement registered in favour of TD be paid;

d) The outstanding real property taxes be paid in full;

e) The arrears of water or sewerage charges, if any, be paid in full;

f) Costs; and

g) That any remaining proceeds be divided equally by the parties. [ 11 ] She is requesting that the property be listed for sale with a qualified real estate agent, namely Chris Constantine, who would be responsible to determine the market value of the home for the purpose of the listing agreement. She is asking that Mr. Crossman, who is living in the premises pay all expenses relating to the home including, but not limited to the mortgage payments, the real property taxes, the utilities, the water and sewerage, and the house insurance until the sale is completed. ISSUES [ 12 ] The only issue in this matter is the following:

a) Should an order for the sale of the lands and premises be granted? LAW [ 13 ] The request to sell the subject lands is based on Rule 67 of the Rules of Court of New Brunswick . The rule relates to the Proceedings for Partition or Sale. The relevant portion of the said Rule states the following: 67.02 In a proceeding for partition or sale, the court may: (

c) order that the lands or any portion thereof be sold and direct the distribution of the proceeds of the sale in accordance with the interests and priorities of persons having an interest in the lands, (

d) subject to Rule 67.06, direct payment of costs from the proceeds of the sale of lands, or as may be appropriate. 67.04 Proceeds of Sale All money realized from a sale of the land or any estate or interest therein shall forthwith be paid into court, unless ordered otherwise. [ 14 ] In Comeau v. Comeau 2015 NBBR 9 , Justice Riordon reviewed the law in New Brunswick relating to partition and sale.

Paragraphs 27 and 28 are relevant in this regard. They read as follows: [27] A recent decision of this court McQuaid v. Underhill 2014 NBQB 87 2014 NBQB 087 reviews the law ofpartition and in that decision many authorities are mentioned. Paragraph 60-63 of the McQuaid decision reads as follows: [60] The goal of such a proceeding by way of partition is to ensure that reasonable and fair partition is achieved, or faircompensation is obtained by each of the co-owners of the property. [61] Partition, being the division of real property among owners, may be achieved voluntarily by an agreement between theparties.

On their failure to agree, a co-owner may ask the Court to make a division in a partition action. [62] In such an action, the court may order a partition in kind, that is a physical division of the property. A sale of theproperty may also be ordered if partition in kind is not possible or if it cannot be achieved fairly or equitably. As was determined in thedecision of Cormier v. Cormier (1989)1037 N.B.J.; (NB CA), 102 N.B.R. (2d) 13, the court can place a value on theinterest of one of the co-owners and direct that this amount so determined, be paid in order to retain ownership.

In that decision, HoytJ.A. stated: “Having thus concluded that Mr. Cormier cannot rely on either a prescriptive right or the doctrine of laches to defeat Mrs.Cormier’s action for partition and sale the question then becomes, the relief claimed being equitable in nature, should the property beordered partitioned and sold or should an arbitrary value be placed on Mrs. Cormier’s interest and judgement be given for that amount? Although Mrs. Cormier’s delay in bringing the action is not sufficient to defeat the claim, in my view it is a factor indetermining the appropriate remedy.

For that reason, I would conclude that the second alternative is the appropriate remedy in thecircumstances, namely, a value be placed on her interest with Mr. Cormier being permitted to retain ownership and possession of theproperty.” {63} I think it would also be possible to refuse a request for the sale of the property should market conditions not befavorable. The court can delay partition as was done in Melvin v. Melvin (1975) 26 N.B.J.; (NB CA), 58 D.L.R.(3d)98, where such would result in hardship.

I will refer further to that decision later in these reasons. [28] Reference can also be made to the decision of Bates v. Beers et al, 2005 NBQB 17 , 2005 NBQB 017 and Mullinsv. Arsenault (NBQB). [15] In the within matter, title to the property was held in joint tenancy. In 2001, the parties purchased the property while they werein a relationship. They resided in the house located on the lot as a couple. In 2012, the parties separated and in 2019, they weredivorced. Mr. Crossman has resided in the property since the separation. [16] Ms.

Beck is not asking for a partition, that is a physical division of the property. This is not appropriate or possible as this is asingle-family dwelling on a residential lot. She is asking for a sale of the property. In the event that Mr. Crossman wants to retain theproperty, the court can place a value on the interest of one of the co-owners and direct that the amount so determined, be paid in order toretain ownership. The parties are no longer cohabitating and have ceased to be in a relationship for over ten years. Either one partyshould buy out the other, or the property should be sold. Mr.

Crossman is unable to obtain financing. In the present circumstances, theproperty should be sold, and the net proceeds should be divided equally between the parties. Consequently, I order the sale of thesubject property. [17] Therefore, the property at 446 Weisner Road, Lakeville - Westmorland, NB, PID 70004874, shall be listed for sale and sold. [18] The sale proceeds shall be distributed or disbursed as follows:

a) The real estate fees and legal fees relating to the sale shall be paid;

b) The outstanding balance on the mortgage registered in favour of the Toronto-Dominion Bank, as of the date of sale shall be paid out;

c) The balance owing on the judgement registered in favour of Toronto-Dominion Bank as of the date of sale shall be paid;

d) The outstanding real property taxes, if any, shall be paid;

e) The water and sewerage arrears, if any, shall be paid;

f) Costs in the amount of $5,000, plus HST and disbursements in favour of Ms. Beck shall be paid.

g) In the event that there are funds remaining after the above noted matters have been paid, these shall be divided evenly by the parties. [ 19 ] The property shall be listed for sale with real estate agent, Chris Constantine at a mutually agreed listing price. If the parties cannot agree on a listing price, the house shall be listed for sale at the price suggested by the real estate agent. Any offer received within 90% of the asking price shall be accepted. In the event of no sale, the listing price shall be reduced according to the advice of the real estate agent. [ 20 ] If Mr.

Crossman refuses to sign the listing agreement, the agreement of purchase and sale, the transfer, or any documents relating to the listing, selling and transfer of the property, the Clerk of the Court of King’s Bench of New Brunswick, Judicial district of Moncton shall sign the documents in his place, pursuant to

section 37 of the Judicature Act . RSNB 1973, C.J-2 [ 21 ] Mr. Crossman shall pay all mortgage payments, real property taxes, home insurance premiums, water and sewer fees and utilities until the closing of the sale of the property. [ 22 ] In the event that Mr. Crossman does not cooperate with respect to the listing and selling of the house, Ms. Beck may take possession of the premises and do whatever is required to facilitate the sale. [ 23 ] The Applicant, Ms. Beck is awarded costs of $5000.00, plus HST, and disbursements to be paid by Mr. Crossman.

DATED at Moncton, N.B., this 29 th day of September 2023. ______________________________ Justice Colette M. d’Entremont Justice of the Court of King’s Bench of New Brunswick