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Court File No. 177-03
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Ontario Superior Court of Justice
Small Claims Court - Goderich, Ontario |
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Between: |
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Robert Parlardg |
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Plaintiff |
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- and - |
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Linda Rose Parlardg
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Defendant |
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Heard: December 1, 2004
Further Submissions received by January 7, 2005
Judgment: February 7, 2005
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Counsel:
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Robert Parlardg, personally
Sheryl M. Feagan, for the Defendant
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Reasons for Judgment
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Background:
The parties separated on April 11, 1999. On November 12, 2001,
in another court action, they signed Minutes of Settlement.
Paragraph 22 of those Minutes of Settlement state that "The
time-share jointly owned by the parties shall be sold and the
proceeds divided equally." Unfortunately nothing was said in
those Minutes of Settlement about how the sale was to be
effected.
The parties have had difficulty communicating directly with each
other. On May 29, 2003, the Plaintiff commenced this court
action.
The parties agree that my function is to determine the
following:
| 1) |
Who is
to ultimately pay the annual maintenance fees attributed to the
time-share from 2000 until the time-share is sold.|
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| 2) |
All of
the details of how the time-share is to be sold, including who
is to have carriage of the sale, how the value is to be
established, who is to prepare the documentation and how the
documentation is to be signed.
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Annual Maintenance Fees Paid to the
End of 2004:
The Plaintiff has
already paid all of the maintenance fees for 1998 to 2004
inclusive. In his evidence, the Plaintiff stated that he does
not want the Defendant to reimburse him for any portion of the
1998 and 1999 fees. However, the Plaintiff is asking that the
Defendant pay a portion of the maintenance fees for all
subsequent years. It appears that the 2004 payment (which was
just made in November) is for 2005.
The Plaintiff paid a total of $ 2,399.07 during 2000, 2001,
2002, 2003 and 2004. This was calculated as follows:
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| Paid
in 2000 - |
no
amount was indicated
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| Paid
in 2001 - |
$
568.07
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| Paid
in 2002 - |
$
599.00
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| Paid
in 2003 - |
$
599.00
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| Paid
in 2004 - |
$
633.00
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| Total
paid - |
$
2,399.07
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Ordinarily, since each party is a
half-owner of the time-share, I would have directed that each
party is responsible for one-half of $ 2,399.07.
However, in an Agreed Statement of Facts which was filed as
Exhibit 1, the Plaintiff admits that he used the time-share
(either directly or indirectly) for the following weeks
commencing:
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1) |
March 11, 2000; |
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2) |
June 23, 2001; |
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3) |
October 27, 2002; |
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4) |
June 14, 2003; |
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5) |
October 19, 2003. |
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The Plaintiff admitted in evidence
that, with the exception of 1999 (which was the year of
separation - and for which he is not claiming any reimbursement
of the maintenance fees) and 2004, he or someone with his
consent fully used the time-share each year. The usage for 2004
can be carried over until the next year, which means it can
still be used for double time in 2005.
The parties' 23 year old son sometimes used the time-share in
place of the Plaintiff. However, the Plaintiff admits that he
himself usually had some usage during the time when his son was
using it.
The parties agree that the Defendant has only used the
time-share once since the date of separation. While the
Plaintiff testified that the Defendant used it for a "couple of
days," the Defendant testified (and I accept her evidence) that
she used the time-share for only one night. I find that that
night was soon after the separation. While the Plaintiff
testified that the Defendant could have used the time-share on
other occasions, the Defendant's evidence (which I accept) was
that the Plaintiff had control of the time-share (including the
membership card). Accordingly, since communication between the
parties was strained, I find that it was virtually impossible
for the Defendant to have been able to use the time-share.
The question that has to be asked is what the usage by each
party has been worth to date.
The Plaintiff testified that one week of usage was worth "at
least $ 500.00" to him.
On the other hand, the Defendant testified that one week was
worth $ 1,400.00 in U.S. funds. At an exchange rate of
approximately $ 1.22, that would equal approximately $ 1,700.00
in Canadian funds.
I find that the Plaintiff has been generously reimbursed for all
of the maintenance fees that he has paid to date because of his
usage (either directly or indirectly) of the time-share.
However, I am not ordering the Plaintiff to reimburse the
Defendant for any additional monetary benefit that the Plaintiff
may have enjoyed to the end of 2004. I say this knowing that the
Defendant only used the time-share for one night. |
Sale of the Time-Share:
The parties agree that it is the net proceeds of the sale which
are to be divided equally (even though the Minutes of Settlement
simply referred to "the proceeds").
The time-share was purchased in September 1998 for $ 15,000.00.
However, the Defendant testified that the true value of it at
the time of purchase was $ 18,000.00 because the $ 3,000.00
difference was attributed to the fact that the unit could not be
used in 1998, and the value of that 2 week period was $
3,000.00.
The Plaintiff testified that, based on his research, this
time-share has a present gross value of $ 10,000.00 and a net
value of approximately $ 8,000.00 (even though new time-shares
in the same complex where the subject one is are selling for $
17,800.00).
The Defendant's research indicates that this time-share has a
gross value of between $ 22,000.00 and $ 24,000.00.
In the Minutes of Settlement signed in November 2001, the
parties agreed that the time-share is to be sold. The Plaintiff
testified that he has tried to sell the time-share. Until the
trial, the Defendant believed that she was unable to sell the
time-share because the Plaintiff appeared to have control of the
unit (including the documentation).
Over 3 years have now passed without the sale being made. It is
now time to give the Defendant the opportunity to sell the
time-share.
Accordingly, I am ordering that:
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1. |
The Defendant's lawyer,
Ms. Sheryl Feagan, shall have carriage of the sale.
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2. |
The Plaintiff shall
provide all of the documentation that he has
concerning the time-share (including the membership
card) to Ms. Feagan within 15 days of the release of
these Reasons.
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3. |
The Defendant and Ms.
Feagan shall determine the price at which to list
the time-share for sale, provided that it is $
10,000.00 or more.
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4. |
The Defendant and Ms.
Feagan shall be at liberty to reduce the list price
from time to time, provided that it is not to be
reduced below $ 10,000.00 without the consent of the
Plaintiff.
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5. |
The Defendant and Ms.
Feagan shall decide on who the listing agent (if
any) is to be from time to time;
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6. |
The Defendant and Ms.
Feagan shall decide on all of the other terms of the
listing agreement.
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7. |
If an offer is received
for $ 10,000.00 or more which is acceptable to the
Defendant, the offer shall be deemed to be
acceptable to the Plaintiff. (Of course, if an offer
is received for less than $ 10,000.00 which is
acceptable to both the Plaintiff and the Defendant,
then the sale can also proceed.)
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8. |
The completion date for
the sale shall be as soon as possible after an
acceptable offer is received.
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9. |
Once an acceptable offer
has been received, Ms. Feagan shall prepare the
necessary sale papers.
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10. |
The Plaintiff shall
cooperate in signing all of the papers necessary to
complete the sale.
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11. |
Ms. Feagan's fees,
disbursements and G.S.T. are to be paid from the
gross sale proceeds.
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12. |
After all necessary
payments to complete the sale have been made from
the gross sale proceeds, the balance (being the net
proceeds) shall be divided equally between the
Plaintiff and the Defendant.
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13. |
If any further disputes
arise regarding the time-share during or after its
sale, the parties shall submit the issue to a single
arbitrator in accordance with Ontario's Arbitration
Act, 1991 (or its successor).
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I do not know how long it will take
to sell the time-share. The Plaintiff had 3 years to try. Thus,
it seems reasonable to give the Defendant 2 years to sell it. It
there have not been any offers received by February 1, 2007
which are acceptable to the Defendant, and the parties are
unable to agree on an acceptable course of action, the parties
shall submit the issue to a single arbitrator in accordance with
Ontario's Arbitration Act, 1991 (or its successor).
Use of the Time-Share Until Sold:
The Defendant testified that she does not have any desire to use
the time-share. Maybe she won't use it before it is sold. On the
other hand, now that her lawyer will be having carriage of the
sale, perhaps the Defendant may want to use it again. I am
leaving that option available for her.
The Plaintiff has enjoyed using the time-share since the parties
separated. He may want to continue to use it until it is sold.
For each calendar year that the parties own the time-share, they
are entitled to a total of 2 weeks of usage, provided that they
do not use the extra suite. If they do use the extra suite,
their entitlement for that year is limited to 1 week. As I have
already stated, unused time can be carried forward to the next
year. This is precisely the situation for 2005. The 2 unused
weeks from 2004 can be added to the regular 2-week allotment for
2005. This means that the time-share has a potential usage of 4
weeks in 2005.
With regard to future usage, I am making the following order:
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1. |
The Defendant shall have
first right to decide if she wants to use any or all
of the time allocated for a particular year
(including any unused time carried forward from the
previous year).
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2. |
The Defendant (through
her lawyer) shall notify the Plaintiff on or before
March 1st, July 1st and November 1st each year of
her intentions for the 4 months immediately
following the notification date. (The reason that I
am having the Defendant notify the Plaintiff in
4-month intervals is because I am assuming that a
purchaser of the time-share will want vacant
possession upon the closing of the transaction and I
do not want to prevent that.)
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3. |
Once the Plaintiff has
been notified of the Defendant's intentions for any
given 4-month period, he shall then be at liberty to
use the time-share for any period of time during
that 4-month period that the Defendant does not want
to use it. If the Plaintiff does use the time-share,
he shall notify the Defendant's lawyer of such
usage.
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4. |
If neither party wants
to use the time-share during a particular 4-month
period, the time-share can be rented to a third
party. The rent proceeds shall be divided equally
between the Plaintiff and the Defendant. |
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Future Annual Maintenance Fees:
If any further maintenance fees have to be paid prior to the
sale of the time-share, subject to the following paragraph, each
party shall be responsible for paying one-half of the
maintenance fees each year until the time-share is sold.
However, if either party uses the time-share in accordance with
the above paragraphs, the party who uses the time-share shall
pay 100 % of the maintenance fees that would be attributed to
that time period.
By way of examples of what I mean:
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1. |
If neither party uses
the time-share in a particular year, each party
shall pay 50 % of the maintenance fees for that
year.
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2. |
If one of the parties
uses all of the time available for a particular
year, that user shall pay 100 % of the maintenance
fees for that year.
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3. |
If one party uses 75 %
of the time available and the other party uses the
remaining 25 % of the available time, the
maintenance fees shall be paid 75 % by the one party
and 25 % by the other party.
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4. |
If one party uses
50 % of the time available, and the other party does
not use any of the time, the one who uses it 50 % of
the time shall pay a total of 75 % of the
maintenance fees, being 50 % because of usage, and
25 % (which is 50 % of the balance) because no one
used it for 50 % of the time. The party who did not
use any of the time shall only be responsible for
paying the remaining 25 % of the total maintenance
fees for that year. |
Costs:
Hopefully the parties can agree on the costs of this trial.
However, if they cannot, each of them may provide me with copies
of any written Offers to Settle and make brief written
submissions (no more than 2 pages in length), within 21 days of
the release of these Reasons.
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N. B. Pickell, Deputy Judge
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Arbitration Decisions - Norman Pickell - Parlardg v. Parlardg
