2011 ONSC 7692, 2011 ONSC 7692

CITATION : Kavanagh v. Lajoie, 2011 ONSC 7692 COURT FILE NO.: 11-51981 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) LAURIE KAVANAGH ) Dani Grandmaitre, for the Applicant Applicant )) ) - and - ) ) MARK LAJOIE Respondent ) ) )) Claude-Alain Burdet, for the Respondent (herein referred to as the “Sister’s Action”) AND BETWEEN COURT FILE NO.: 11-51977 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) MARK LAJOIE Plaintiff )) Claude-Alain Burdet, for the Plaintiff ) - and - ) ) ) LAURIE KAVANAGH (NÉE LAJOIE) Defendant )))) Dani Grandmaitre, for the Defendant (herein referred to as the “Brother’s Action”) )) HEARD: November 29, 2011

REASONS FOR DECISION Kane J. [1] Ms. Kavanagh, (the “Sister”), made her above application returnable November 29, 2011 and sought an order of sale of aresidential property known municipally as 299 Oakdale Avenue, Ottawa, Ontario (the “Property”) pursuant to the Partition Act, R.S.O.1990, c. P.4, as amended, sections 2 and 3, on the basis of her registered ownership thereof together with Mr.

Lajoie, (the “Brother”), astenants in common. [2] The Brother opposed the relief sought and alleges his Sister’s interest therein was obtained inappropriately from their late father(the “Father”) at a time when the Father lacked mental capacity and was unduly influenced by the Sister to transfer his interest therein toher. [3] On the same commencement date of the Sister’s Action, the Brother commenced the Brother’s Action in which he seeks toannul the Father’s transfer to the Sister of his interest in the Property and for an order registering him as the exclusive owner of theProperty. [4] The Brother’s Action claims additional remedies such as misappropriation of other property by the Sister belonging to theFather and an accounting of property belonging to the estate of their late aunt. [5] The relevant law regarding the relief sought today by the Sister is: (

a) Section 2 of the Partition Act subjects property to a claim to partition or sale against all joint tenants, tenants in common, andcoparceners. (

b) Only those who were entitled to possession of their shares in land can have partition; see Morrison v. Morrison (1917), (ON CA), 34 D.L.R. 677 (Ont. S.C. (A.D.) at 678, Nobis Investments Ltd. v. Atlantic Metal Spinning Co., [1988] O.J. No.335 (C.A.), and Ferrier v. Civiero (2001), (ON CA), 147 O.A.C. 196. (

c) If there is a claim for sole ownership of a disputed property that raises a genuine issue for trial, courts should not order thesale and partition of the land until determination of that question; see Ames v. Bond, (1992), (ON CA), 39 R.F.L.(3d) 375 (Ont. C.A.), Investissements Aperdev Inc. v. Gestions Remer Inc., (Ont. S.

C) and Nobis Investments Ltd v.Atlantic Metal Spinning Co., supra. (

d) The Partition Act requires a co-owner who is seeking partition or sale to have an estate in possession or the immediate rightto possession. Perrell J., A Partition Act Primer, 30 Advoc. Q. 251 2005 at p. 251. [6] The Brother was late in filing his factum and affidavit contrary to Rule 38.09(3) of the Rules of Civil Procedure, R.R.O. 1990,Reg. 194, as amended. He breached Rule 39.03(2) in filing his affidavit after cross-examining the Sister. He has includedcorrespondence in his record not identified as exhibits to an affidavit. The Rules apply to all parties.

Despite these breaches, I now haveknowledge of the allegation that the Father intended and promised full title to the Property to the Brother on the death of the former andthat that result was defeated improperly by the Sister’s insertion of herself as a tenant in common. [7] The Sister relies upon correspondence from her Brother dated November 15, 2010, to reflect his acceptance of their commonownership of the Property and his intention to obtain a sale of the Property by way of partition.

The Brother in this correspondence hintsat a dispute of title in his following statement: “As there are several legal considerations regarding the current ownership of the property owing to the circumstancesurrounding the title change effected on July 22, 2009, … take no further action until such time as these legal matters can be resolved”,and … I intend, once again, pending any legal action in regards to the title change… [8] It will be argued that the Brother acknowledged his Sister’s title and ownership interest in this letter in insisting that one half ofthe rent be forwarded to him. [9] The Brother, subsequent to this letter, elected not to proceed with a partition application and instead commenced legal actionclaiming exclusive ownership of the Property. [10] Subsequent to this letter, the Brother assumed no responsibility for the Property; did not renew the lease thereof and benefited byallowing the Sister to pay all carrying costs of the Property.

[ 11 ] The Sister responds to the title issue raised by requesting an immediate sale with the proceeds frozen until trial of her Brother’s title issue thereby preserving the current equity of the Property. This is a practical approach however the Brother objects to the sale of the Property. That objection raises the question whether property should be sold over the objection of at least a common owner, at the request of someone who the court may determine has no legal interest in the Property.

This practical response in addition does not overcome the above law prohibiting sale before determination of disputed title. [ 12 ] I cannot conclude that there is no genuine title issue. The Brother has raised enough to require a trial of that issue. I do not however wish the delay until trial to be used to financially penalize the Sister and possibly lose the Property or its equity to ongoing expenses. This single family home has a value in the range of $375,000. [ 13 ] Accordingly, I am directing a trial of an issue in the Sister’s Action. The central issue is specific and can be narrowly dealt with.

Until completion of that trial, I am staying the following paragraphs in the statement of claim in the Brother’s action, namely: (

a) The “unauthorized use of the plaintiff’s property” and “undue influence to transfer title of property in the defendant’s self- interest” in paragraph 1(a), (

b) Paragraphs 1(

b) and (d), (

c) Paragraphs 5 to 9, (

d) Paragraphs 10 to 21 as they relate to title of the Property, (

e) Paragraphs 24 to 28, (

f) Paragraphs 29 and 31 as they relate to title to the Property, (

g) Paragraphs 32 to 34, and (

h) Paragraphs 36 to 39. [ 14 ] The directions under Rule 38.10 given this decision directing a trial of an issue are as follows: (

a) The Sister’s Action on the issue as to title shall be treated as an action in respect of the issues stated below pursuant to the following directions. The balance of the notice of application is adjourned to be disposed of by the trial judge at the conclusion of the trial of the title issue. (

b) The issues to proceed to trial are: (

i) Did the Father promise that upon his death the Brother, as an owner in joint tenancy of the Property, would become sole owner of the Property? (ii) Did the Father independent of undue influence from the Sister while in possession of his legal capacity, intentionally sever the joint tenancy and transfer his interest in the Property to the Sister? (iii) Did the Sister use undue influence to obtain the Father’s transfer of his interest in the Property to her? (iv) Did the Sister use a power of attorney from the Father to sever the joint tenancy of the Property between the Brother and Father and transfer the Father’s interest to the Sister?

If so, was that use of the power of attorney legally appropriate? (

v) Is the Brother alone or are the Brother and the Sister as tenants in common, the legal owner(

s) of the Property? (vi) Which of the parties is responsible for what portion of the net carrying costs of this Property since August 1, 2011? (

c) The Sister as plaintiff shall serve her statement of claim as to the above issues and any further affidavit(

s) she intends to rely upon in support of her position, by January 13, 2012. The Brother as defendant shall serve his statement of defence, any counterclaim and any further affidavit(

s) he relies upon only as to the above issues by January 20, 2012. The Sister may file any defence/reply by January 25, 2012. (

d) The existing affidavits filed on this application, any affidavits under paragraph (

e) below, the transcripts of any cross- examinations may be used at trial in the same manner as an examination for discovery. (

e) The parties shall serve one another with affidavits of documents on this trial of issues by January 27, 2012.

(

f) Any witness to be called at trial, including the parties, shall state in an affidavit their testimony in chief. That affidavit, and any prior affidavits by such witness, shall constitute their trial testimony in chief, plus one additional hour of examination in chief, at trial. All such affidavits are to be served by February 3, 2012. (

g) Each party by February 3, 2012 is to notify the other party of the date and location of cross-examination and discovery. (

h) Any cross-examinations on affidavits by the parties and/or any examination for discovery of the parties are to be completed by February 29, 2012. Cross-examinations and examinations of each party shall not exceed one full day. (

i) For clarity, there shall be no cross-examination or discovery of non-parties before trial. (

j) The Brother shall at his cost attend in Ottawa to be cross-examined or examined with the final issue as to such cost to be reserved to the trial judge. (

k) Any motions shall be argued before Kane J. at 4:00 PM on a date to be obtained from the trial coordinator but no later than March 15, 2012. (

l) The trial of these issues shall proceed on March 27 and 28, 2012, before Kane J. or such other judge as appointed. [ 15 ] As a term of the adjournment of the Sister’s Action; pursuant to Rule 20.05(2)(

o) and based on the Brother’s allegation that he is the sole owner of the Property, he shall by January 20, 2012, pay into court to the credit of this action, or to counsel for the Sister to be held in trust by that firm until the release of the decision herein, the sum of $4,117 which consists on the evidence of the full net carrying costs paid by the Sister to date ($1,337) and a projection based on evidence of the future carrying costs until the end of March, 2012 ($2,780).

Until the trial and decision thereon, the Sister shall be required to pay all ongoing regular carrying costs for the Property. [ 16 ] Given the Brother’s wish to prevent the sale of the Property before trial even though he has led no evidence as to why the property should not now be sold and his non-compliance with the filing requirements under the above rules, costs of the application as argued to date are payable to the Sister, in the cause and fixed at $4,000 inclusive of tax and disbursements. ___________________________ Kane J. Released : December 23, 2011 CITATION : Kavanagh v.

Lajoie, 2011 ONSC 7692 COURT FILE NO.: 11-51981

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: LAURIE KAVANAGH Applicant - and – MARK LAJOIE Respondent COURT FILE NO.: 11-51977 B E T W E E N: MARK LAJOIE Plaintiff - and – LAURIE KAVANAGH (NÉE LAJOIE) Defendant REASONS FOR DECISION Kane J.

Released : December 23, 2011