2023 QCCS 646, 2023 QCCS 646

Orsini c. Orsini 2023 QCCS 646 SUPERIOR COURT CANADA PROVINCE OF QUEBEC DISTRICT OF montréal No.: 500-17-122767-224 DATE: February 17, 2023 _____________________________________________________________________ BY THE HONOURABLE katheryne a. desfossés, J.S.C. _____________________________________________________________________ CASSANDRA ORSINI Plaintiff v.

LUIGI ORSINI Defendant and ATTORNEY GENERAL OF QUEBEC, REPRESENTED BY DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS and CAISSE DESJARDINS DE LACHINE/ST-PIERRE and L’OFFICIER DE LA PUBLICITÉ DES DROITS DU BUREAU DE LA CIRCONSCRIPITON FONCIÈRE DE MONTRÉAL Mis en cause _____________________________________________________________________ JUDGMENT RENDERED ORALLY _____________________________________________________________________ OVERVIEW [ 1 ] Cassandra and Luigi Orsini are siblings and undivided co-owners of an immovable property situated at [...] in Montreal (the “Property”). [ 2 ] The Property is a duplex in which Luigi [1] occupies the lower-level unit, while a tenant occupies the upper-level unit in exchange for a monthly rent of $ 1,175. [ 3 ] Even though the lower unit represents more than 50 % of the liveable area of the Property, Cassandra submits that Luigi has only made one mortgage payment since October 2020 and has not paid any of the monthly expenses or disbursements since April 2019.

Cassandra is thus forced to personally finance the Property while Luigi peacefully enjoys his unit. [ 4 ] In addition, it appears that a Restraint Order in Respect of a non-Chemical Offence-Related Property (“Restraint Order”) regarding the Property was issued against Luigi in October 2020, in the context of a criminal investigation involving him, which inevitably impacts on the parties’ ability to refinance or insure the Property. [ 5 ] Since the parties are now estranged, Cassandra seeks to end the indivision of the Property and requests the issuance of a safeguard order permitting the immediate sale of the Property and ordering Luigi to pay $ 1,215.20 per month on the first day of each month, in payment of his share of the Property’s expenses, pending the sale [ 6 ] Luigi submits that he is in the process of contesting the criminal charges against him and is hopeful for a positive outcome shortly.

However, he has not taken any specific measures otherwise to remove the Restraint Order. Luigi also explains that his personal situation has been particularly difficult since the passing of their father in 2019 and would have hoped for Cassandra’s indulgence in these circumstances. He nevertheless admits that he does not otherwise have reasons to oppose the safeguard order sought and states that he has always been wiling to pay his share of expenses.

ANALYSIS 1. Can the court issue a safeguard order to force the sale of the property and payment of luigi’s monthly share of expenses? 1.1 Legal principles [ 7 ] A safeguard order can be issued pursuant to article 158(8) C.C.P. if a party demonstrates that he or she meets the criteria of (1) urgency, (2) appearance of right, (3) serious or irreparable harm and (4) balance of inconvenience [2] . [ 8 ] As for indivision,

article 1030 C.C.Q. provides that “no one is bound to remain in indivision”.

As a result, partition can be demanded at any time “unless it has been postponed by an agreement, a testamentary provision or a judgment, or by operation of law, or unless it has become impossible because the property has been appropriated to a lasting purpose” [3] . [ 9 ] When granting an application for the partition of an undivided property, the Court may order the sale of the property [4] and appoint an expert to assess the value of the property [5] . 1.2 Discussion 1.2.1 Urgency [ 10 ] The undisputed evidence submitted by Cassandra is sufficient to conclude that it is urgent to proceed with the sale of the Property.

Otherwise, the indivision is causing financial distress on Cassandra and her family and is seriously threatening the parties’ ability to maintain the Property that can no longer be insured or financed. 1.2.2 Appearance of right [ 11 ] The law provides that Cassandra is not bound to remain in the indivision, and the Court has not been provided with any evidence preventing the partition from being ordered. [ 12 ] In addition, because of the Restraint Order and the Director of Prosecutions’ consent to the judicial sale of the Property, Cassandra has provided sufficient evidence that she has an apparent right to the judicial sale sought. [ 13 ] However, to order the judicial sale of the Property, the Court must be provided with an accredited evaluation allowing proper price quotation.

No evaluation is currently submitted in support of Cassandra’s application. 1.2.3 Serious and irreparable harm [ 14 ] As indicated above, the indivision is causing financial distress on Cassandra and the parties’ ability to maintain the Property. Similarly, Luigi’s default in participating in the payment of the expenses for the Property is also causing serious harm to both parties. 1.2.4 Balance of inconvenience [ 15 ] Luigi argues that he would hope to reach an agreement with his sister.

However, in a context where the law specifically permits partition of the indivision at any time, the Court fails to see how the arguments he raises can justify setting aside the application of clear provision of the law, particularly when Cassandra has been supporting alone the financial weight of the Property for over two years. [ 16 ] In these circumstances, the balance of inconvenience favors the order sought by Cassandra. [ 17 ] Considering the aforementioned, the Court will grant the safeguard order sought, with certain limitations. [ 18 ] Firstly, while its judicial sale will be permitted, the Property cannot be put on the market before an accredited evaluation is provided to the Court and a base price is set. [ 19 ] Secondly, any remaining proceeds from the sale, after payment of the judicial fees including those payable to the designated officer, the real estate agent and the real estate appraiser and payment of the mortgage loan on the Property, shall be held in trust by the notary executing the sale, pending a judgment on the merits as to the partition of such proceeds. [ 20 ] Thirdly, in the absence of tangible evidence regarding the monthly expenses related to the Property, Luigi will be ordered to pay a monthly rent of $ 1,100, which is the equivalent of the rent paid by the tenant occupying the upper unit.

Cassandra will be allowed to request a modification from the Court as to these monthly payments upon presentation of tangible evidence of the actual monthly expenses. [ 21 ] Finally, the Court finds that provisional execution notwithstanding appeal is warranted considering the urgency and the Defendant’s lack of reasons to oppose the safeguard order sought.

FOR THESE REASONS, THE COURT: [ 22 ] TAKES NOTICE of the written agreement of the Impleaded party, Attorney General of Quebec, represented by the Director of criminal and penal prosecutions, to proceed with the plaintiff’s application to end the indivision and proceed with the judicial sale of the

property situated at [...] in Montreal, in accordance with the Restraint Order in Respect of a non-Chemical Offence-Related Property of October 29, 2020, against Defendant in the case of the Court of Quebec, Criminal and Penal division, docket number 500-68-000107- 207; [ 23 ] ORDERS the sale under judicial authority by agreement of the immovable property situated at 7513-7515 Baily Road, the said immovable being designated as follows at the Land Registry: An emplacement fronting on Bailey road, in the city of Côte Saint-Luc, province of Quebec, Canada, known and designated upon the Cadastre of Quebec, of the registry office for the Registration Division of Montreal, as being: Lot number [...] ([...]).

With the building thereon erected bearing numbers [...] of said Baily road, in the city of Côte Saint-Luc, province of Quebec, Canada, [...], whereof the North-East lateral wall is “mitoyen”, circumstance and dependencies. (the “Property”) [ 24 ] APPOINTS Simon McLean, Bailiff, or another agent from the Bailiff Firm Paquette & Associés, Huissiers de justice, s.e.n.c.r.l. , to act as the Designated Officer in charge of the sale of the Property under judicial authority by agreement; [ 25 ] ORDERS that the sale under judicial authority by agreement of the Property take place under the following terms and conditions: 25.1.

That a base price is set by the Superior Court further to the filing of an evaluation report by an accredited real estate appraiser; 25.2. That any remaining proceeds from the sale, after payment of the judicial fees including those payable to the Designated Officer, the real estate agent and the real estate appraiser and payment of the mortgage loan on the Property, shall be held in trust by the notary executing the sale, pending a judgment on the merits as to the partition of such proceeds; 25.3.

That any purchase offer made to the Designated Officer be presented to both Plaintiff and the Director of Prosecutions or the Plaintiff and Defendant, if the Restraint Order in Respect of a non-Chemical Offence-Related Property has been removed, for their approval, to be provided within a reasonable period of time not to exceed thirty (30) days; 25.4.

That the eventual purchaser provides, at the signing of an accepted offer to purchase, his date of birth in order for an investigator to verify his relationship with Defendant, the existence of a criminal record, and/or any involvement in breaches of the law and good morals; 25.5. That any accepted offer of purchase provide for a period of forty-five (45) days to enable such verification; 25.6. That the Designated Officer informs any eventual purchaser that the sale is conditional on the above-mentioned verification by the Director of Prosecutions; 25.7.

That any proceedings or requests made in the context of the sale by judicial authority be notified to the Director of Prosecutions; 25.8.

That the Director of Prosecutions’ rights to intervene by request be reserved at all stages of the process of the sale by judicial authority of the Property; [ 26 ] AUTHORIZES the Designated Officer to take all steps necessary to execute the sale by judicial authority, including accessing the property as needed for the purpose of appraisals and showings to prospective buyers; [ 27 ] AUTHORIZES the Designated Office to mandate a real estate appraiser for the evaluation of the Property and preparation of a report to be filed in court for the setting of the base sale price of the Property; [ 28 ] FIXES the remuneration of the Designated Officer at a rate of $ 125/hour plus disbursements required in the course of the sale by judicial authority of the Property; [ 29 ] AUTHORIZES the Designated Officer, at his discretion, to retain the services of a real estate agent of his choice, and to pay commission to said real estate agent based on the market price of the Duplex, but not to exceed four percent (4 %) of the sale price of the Property, such commission to be paid from the proceeds of sale of the Property; [ 30 ] ORDERS that any contract to mandate a real estate appraiser or agent for the purpose of the sale by judicial authority of the Property shall be subject to the approval of the Director of Prosecutions; [ 31 ] DECLARES that the sale by judicial authority to intervene herein has the same effect as a decree of adjudication as provided by the Code of Civil Procedure , according to

section 2794 of the Civil Code of Quebec and purges all the real rights registered thereon; [ 32 ] ORDERS the Designated Officer to forward all required documents to the Land Registry for the registration division of Montreal, to radiate all existing real rights thereon, save and except for the Restraint Order in Respect of a non-Chemical Offence- Related Property published against the Property by the Director of Prosecutions at the Land Registry, for the registration division of Montréal, on October 29 th , 2020, in relation to the Court file #500-68-000107-207; [ 33 ] ORDERS the Defendant to pay the Plaintiff $ 1,100 per month on the first day of each month, representing part of his share of the Expenses of the Property, until such time as the Property is sold; [ 34 ] RESERVES the Plaintiff’s rights to request a modification from the Court as to the monthly payment owed by the Defendant

upon presentation of tangible evidence of the actual monthly expenses; [ 35 ] ORDERS provisional execution notwithstanding appeal; [ 36 ] RESCHEDULES the Originating application to end indivision, for sale of an immovable property under judicial authority by agreement, for reimbursement of expenses and disbursement and for safeguard order to May 26, 2023, for the setting of the base sale price of the Property; [ 37 ] THE WHOLE with costs. __________________________________ katheryne a. desfosses, j.S.C. Me Stephen Sherman LITVACK DESSUREAULT S.E.N.C.R.L./LLP Lawyers for the plaintiff Luigi Orsini Self represented party Hearing date: February 17, 2023