Resisting an Order for Partition and Sale: Stroeder Estate v. Stroeder
Last week I blogged about a case involving partition and sale of a home, and mentioned that if a tenant in common seeks partition and sale, the court will grant the order, absent evidence of malice, oppression, or vexatious intent.
This week, we see an excellent example of how difficult it is to show oppression. In Stroeder Estate v. Stroeder, 2015 ONSC 5762, the respondent to the partition application claimed that the hardship she would suffer if the home were sold was so extreme as to be “akin to” oppression. Her claim found little sympathy with the court.
Background
The respondent was the former spouse of the deceased. Although the two had divorced over seven years prior, the respondent was still living in the former matrimonial home. She had simply ignored the deceased’s requests, following separation, for her to buy out his interest in the home. The deceased had therefore instructed his lawyer to sever the joint tenancy, but had never taken any other steps to deal with the property. In his will, he left his interest in the property to his Estate Trustee (his widow) in trust for their 16 year old daughter, thereby leaving the widow to deal with the problem of the ex-spouse.
Since separation, the respondent had been living in part of the home and renting out the remainder of it, keeping all rent proceeds. The home is now worth between $225,000 and $265,000 and recently mortgage free, the deceased’s mortgage insurance having paid the mortgage off when he passed away.
The alleged oppression
The respondent suffers from arthritis, fibromyalgia, Bell’s palsy and cataracts, in addition to being morbidly obese with very limited mobility. She argued the home was well suited to her disabilities and provided her with rental income and accommodation for her son, who rented the upper floor. Her position was that she could not find alternate accommodation that would provide for her needs. While this is not mentioned in the case, certainly the process of moving itself would be very difficult for her.
The court disagreed with her claim, and found that in fact the respondent would likely be better off in alternate accommodation and would accordingly “not suffer much if any hardship and certainly nothing approaching oppression” (at para. 25). Analyzing the layout of the home, the respondent’s disabilities, and alternative accommodation that could likely be rented for less than the carrying costs of the home (thereby allowing the respondent to invest her share of the sale proceeds), the court ordered that the home be listed for sale within 10 days.
This case demonstrates that to show oppression, a party must provide evidence of much more than hardship. The court here was looking for evidence that the respondent would simply be unable to find alternate suitable accommodation. The case also serves as a valuable reminder that it is always best to resolve family law issues promptly, and while you still can. Otherwise, you may be giving your loved ones more than just the assets you intended: they may find themselves inheriting the former spouse you never entirely severed ties with.
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Written by: WEL Partners
Posted on: October 2, 2015
Categories: Commentary
Last week I blogged about a case involving partition and sale of a home, and mentioned that if a tenant in common seeks partition and sale, the court will grant the order, absent evidence of malice, oppression, or vexatious intent.
This week, we see an excellent example of how difficult it is to show oppression. In Stroeder Estate v. Stroeder, 2015 ONSC 5762, the respondent to the partition application claimed that the hardship she would suffer if the home were sold was so extreme as to be “akin to” oppression. Her claim found little sympathy with the court.
Background
The respondent was the former spouse of the deceased. Although the two had divorced over seven years prior, the respondent was still living in the former matrimonial home. She had simply ignored the deceased’s requests, following separation, for her to buy out his interest in the home. The deceased had therefore instructed his lawyer to sever the joint tenancy, but had never taken any other steps to deal with the property. In his will, he left his interest in the property to his Estate Trustee (his widow) in trust for their 16 year old daughter, thereby leaving the widow to deal with the problem of the ex-spouse.
Since separation, the respondent had been living in part of the home and renting out the remainder of it, keeping all rent proceeds. The home is now worth between $225,000 and $265,000 and recently mortgage free, the deceased’s mortgage insurance having paid the mortgage off when he passed away.
The alleged oppression
The respondent suffers from arthritis, fibromyalgia, Bell’s palsy and cataracts, in addition to being morbidly obese with very limited mobility. She argued the home was well suited to her disabilities and provided her with rental income and accommodation for her son, who rented the upper floor. Her position was that she could not find alternate accommodation that would provide for her needs. While this is not mentioned in the case, certainly the process of moving itself would be very difficult for her.
The court disagreed with her claim, and found that in fact the respondent would likely be better off in alternate accommodation and would accordingly “not suffer much if any hardship and certainly nothing approaching oppression” (at para. 25). Analyzing the layout of the home, the respondent’s disabilities, and alternative accommodation that could likely be rented for less than the carrying costs of the home (thereby allowing the respondent to invest her share of the sale proceeds), the court ordered that the home be listed for sale within 10 days.
This case demonstrates that to show oppression, a party must provide evidence of much more than hardship. The court here was looking for evidence that the respondent would simply be unable to find alternate suitable accommodation. The case also serves as a valuable reminder that it is always best to resolve family law issues promptly, and while you still can. Otherwise, you may be giving your loved ones more than just the assets you intended: they may find themselves inheriting the former spouse you never entirely severed ties with.
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