2013 ONSC 1160, 2013 ONSC 1160

CITATION : Viau v. Viau , 2013 ONSC 1160 COURT FILE NO.: 12-55159 DATE: 20130221 SUPERIOR COURT OF JUSTICE - ONTARIO RE: MADELEINE VIAU and MAURICE VIAU, by his Powers of Attorney, MADELEINE VIAU and HELENE SOUSA, Applicants AND MICHEL VIAU, Respondent -AND – COURT FILE NO.: 12-55364 MICHEL VIAU, Applicant AND MADELEINE VIAU and MAURICE VIAU, by his Powers of Attorney, MADELEINE VIAU and HELENE SOUSA and BRADLEY H. WRIGHT, Respondents BEFORE: Mr. Justice Robert N. Beaudoin COUNSEL: Terri H. Semanyk, for MADELEINE VIAU and MAURICE VIAU, by his Powers of Attorney, MADELEINE VIAU and HELENE SOUSA Stephen J.

Maddex, for MICHEL VIAU HEARD: February 14, 2013 ENDORSEMENT [ 1 ] There are two applications before the Court. In the first proceeding, Court File No. 12-55159, the Applicants are Madeleine Viau and Maurice Viau and the Respondent is Michel Viau. In the second proceeding, Court File No. 12-55364, the Applicant is Michel Viau and the Respondents are Madeleine Viau and Maurice Viau by his Powers of Attorney, Madeline Viau and Helen Sousa, and Bradley H. Wright. Maurice and Madeleine Viau are the parents of Michel. Bradley H. Wright was their solicitor.

Maurice Viau died after the commencement of these proceedings; an Order to continue was obtained and he is represented in these proceedings by the Executor of his Estate. At the outset of the hearing of this application, the claim against Bradley H. Wright was dismissed on consent.

By agreement of the parties, these applications were heard together; with the proceeding commenced by Madeleine and Maurice to be considered the application and the application commenced by Michel to be treated as a cross-application. [ 2 ] These applications involve claims to the proceeds arising from a winning “CHEO” Dream of a Lifetime Lottery ticket. The successful winners received cash and other prizes, and more significantly, a brand new home worth $1.2M. That house has been sold and the proceeds of sale (less $100,000) have been paid into court on consent.

In the application commenced by Madeleine and Maurice, there is a further claim for the Partition and Sale of a home in Kemptville, Ontario, jointly held by the three Viau parties. [ 3 ] There is no issue that Michel Viau purchased three CHEO lottery tickets for a total of $250.00 in November, 2011. There is no issue that he placed three names, his, then Maurice and Madeleine’s on each of the three tickets. There is also no dispute that Michel Viau told his parents that he was making a gift of the tickets to his parents . Title to the CHEO prize home was conveyed to Michel Viau, as required by the Lottery Rules.

That house was sold on July 6, 2012. Those proceeds, less $100,000 paid to Michel, have been paid into court. [ 4 ] These proceedings were commenced by way of application. Rule 14.05 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 indicates that a proceeding may be commenced by way of Application where there are no material facts in dispute. Here, there are material facts in dispute. Mrs. Viau claims a 1/3 entitlement to the proceeds of CHEO lottery ticket on her own behalf and she and her daughter, Helene Sousa, claim a 1/3 entitlement on behalf of Maurice Viau’s Estate.

Madeleine alleges that there was an agreement between Michel and his parents that they were equal owners of the lottery tickets or, in the alternative, that Michel made a gift an equal share to each of them. [ 5 ] Michel argues that the nature of the Applicants’ claim is not clear, that there was no enforceable agreement, that there was no valid gift and, to the extent that there was any gift, it was never his intention to give his parents each 1/3 of the value of the prizes. He also denies that the Applicants have any legal or equitable entitlement to the proceeds of sale.

There were numerous affidavits filed in these proceedings that relate to the issue of the agreement and of the intentions of the parties. There are material facts in dispute and assessments of credibility will be important. [ 6 ] A trial of the following issues is necessary: 1. Was there an enforceable agreement between Michel Viau, Maurice Viau and Madeleine Viau to equally share the proceeds if any one CHEO ticket purchased in their three names was a winning ticket?

2. If there is no enforceable agreement, did Michel make a valid gift of 1/3 of the proceeds of the winning ticket to each of hisparents? 3. Can Madeleine Viau and the Estate of Maurice Viau make a claim in law or in equity to funds paid into court? [7] In these circumstances, I give the following directions pursuant to Rule 38.10(1)(b): 1. The proceedings will be treated as an action with Madeleine Viau and the Estate of the Maurice Viau as Plaintiffs and Michel Viauas Defendant; 2. The Plaintiffs shall deliver a Statement of Claim within 20 days; 3.

The Defendant shall deliver his Statement of Defence within 20 days; 4. Any Reply by the Plaintiffs will be delivered within a further 10 days; 5. The parties shall attend a mediation within 60 days after the time has expired for the delivery of a Reply; 6. The cross–examinations of the parties will serve as Examinations for Discovery and the parties shall deliver Affidavits ofDocuments and conduct further discoveries on any new issues raised in the pleading within 60 days of the mediation; and 7. A settlement conference is the scheduled to take place before November 30th, 2013.

The Partition and Sale of the Kemptville Property [8] Maurice and Madeleine Viau are joint owners with Michel Viau of property known municipally as 2707 McMullen Road, inKemptville, Ontario, in which they all resided until 2012. That property was purchased in June of 2008. With the death of MauriceViau, that property is now held jointly by Madeleine and Michel Viau. In late June 2012, because of the ongoing dispute with Michel,Madeleine has left the property and now resides with family members. [9] Madeline seeks the sale of Kemptville home so that she can acquire her own accommodation.

On October 23, 2012, JusticeMcLean heard submissions on these applications and made the following Endorsement with regard to the Kemptville property: Order to go that Michel Viau shall pay all carrying charges including the mortgage payments on within real estate commencing Nov. 1,2012, balance adjourned to a date to be fixed by the trial coordinator at the request of counsel. Costs to the hearing judge. [10] Michel takes the position that Madeleine’s claim under the Partition Act, R.S.O. 1990, c. P.4, as am., has been resolved sinceMichel has now taken over all of the payments for the Kemptville house.

There is no merit in that argument. Justice McLean’s Orderwas an interim Order pending the hearing of the application for partition and sale. The claim has not been rendered “moot” as Michelalleges. [11] Pursuant to

section 2 of the Partition Act, the Applicant has a right to compel the sale of a property where she has a legalinterest. As set out in Latcham v. Latcham, 44960 (Ont. C.A.), the only bar to such an order is conduct that is vexatious,malicious or oppressive on the part of the Applicant. There is no such evidence on the part of the Applicant, Madeleine Viau.Accordingly, there will there for an order for the partition and sale of the Kemptville property.

If the parties cannot agree on the issuesrelated to the sale, Rule 66.02 provides that an order for partition and sale shall be granted in Form 66A, which calls for a referencewhich I direct before the Master here in Ottawa. [12] The Applicant, Madeleine Viau, shall prepare the formal judgment for partition and sale for my signature. Madeleine Viau isentitled to have her costs of the Application insofar as it relates to the partition and sale of the Kemptville property. Those costs are to bedetermined by me after the sale of the home and the proceeds of sale have been paid into court pursuant to Rule 66.03.

Beaudoin J. Date: February 21, 2013 CITATION: Viau v. Viau, 2013 ONSC 1160 COURT FILE NO.: 12-55159

DATE: 20130221 ONTARIO SUPERIOR COURT OF JUSTICE COURT FILE NO .: 12-55159 RE: MADELEINE VIAU and MAURICE VIAU, by his Powers of Attorney, MADELEINE VIAU and HELENE SOUSA, Applicants AND MICHEL VIAU, Respondent -AND – COURT FILE NO.: 12-55364 MICHEL VIAU, Applicant AND MADELEINE VIAU and MAURICE VIAU, by his Powers of Attorney, MADELEINE VIAU and HELENE SOUSA and BRADLEY H. WRIGHT, Respondents BEFORE: Mr. Justice Robert N. Beaudoin COUNSEL: Terri H. Semanyk, for MADELEINE VIAU and MAURICE VIAU, by his Powers of Attorney, MADELEINE VIAU and HELENE SOUSA Stephen J. Maddex, for MICHEL VIAU ENDORSEMENT Beaudoin J. Released: February 23, 2013