M.Y.T.C. v. L.H.N.,


2019 BCSC 2455

Date: 20190506

Docket: E172700

Registry: Vancouver







Before: The Honourable Mr. Justice Milman

Oral Reasons for Judgment

Counsel for the Claimant:

P. Paul

Counsel for the Respondent:

R. Khunkhun

Place and Dates of Hearing:

Vancouver, B.C.

May 3 and 6, 2019

Place and Date of Judgment:

Vancouver, B.C.

May 6, 2019


[1]             THE COURT:  This is an application seeking approval of the sale of the family home. The parties are midway through a trial which is scheduled to resume again in a week's time. In the meantime, the claimant, M.Y.T.C., applies for leave to proceed with the sale and to conduct certain repairs so that it can proceed. The respondent, L.H.N., opposes the application.

[2]             The first point I will make is that I am not prepared today, given the limited time that was made available for the hearing of this application, to decide central issues that are before me in the trial. In particular, I am not prepared to make significant findings, including findings of credibility, at this time until I have heard all of the evidence in the trial. For similar reasons, I am also not prepared to revisit the series of orders that have already been made in this action and that have taken the parties to this stage in the sales process.

[3]             This means that the application before me falls to be decided according to the balance of convenience as between the parties. Overall, I find that the balance favours M.Y.T.C. For M.Y.T.C., the potential for irreparable harm arises from the possible loss of the proposed sale that is before me for approval. She says that the sale process has been a long and difficult one, and she needs the money. The house has been on the market for many months and this is the best offer that has been received to date. The sale price is close to the asking price and the assessed value of the property. Not long ago, L.H.N. was prepared to proceed with a sale at a price close to this one, but that sale fell through when those other purchasers did not waive the subjects.

[4]             For L.H.N., the potential irreparable harm arises from the loss of his opportunity to return to live in the home with R.N., the parties' son. He says that M.Y.T.C. has artificially created the urgency the parties now face and he suspects that the purchaser is not at arm's length from M.Y.T.C. I see no evidence to support that suspicion, however.

[5]             L.H.N. was in favour of a sale, including a sale at or close to this sale price, until recently. What has changed, he says, is that he has recently turned up evidence that M.Y.T.C. had been renting out part of the house on Airbnb and elsewhere (the rental appears to have lasted three weeks), evidence that he says shows that M.Y.T.C. has been misleading both him and the court for many months. In particular, he asserts that she obtained the orders allowing her to stay in the house while he was required to leave it and later giving her conduct of the sale on the basis of this and other false testimony. He suggests this is merely the tip of an iceberg.

[6]             A second development he relies on is a recent flood in the basement that was apparently caused by a malfunction with the sump pump there. He complains that M.Y.T.C. was not forthcoming about that either and he wants to take charge of the process of repairing the damage himself rather than leaving it to her.

[7]             I am not persuaded that either of these developments adequately explain L.H.N.'s change of heart about the prospect of having the house sold. He was consistently in favour of a sale before; he no longer is. It appears that the real reason L.H.N. does not want to see the house sold now is that the market is at a lower point than it has been for many years. He believes the market is now turning around and that it would be preferable to wait for a better offer to emerge later. In the meantime, he can investigate what has really been occurring in the house while M.Y.T.C. has been living there.

[8]             I have seen no evidence to suggest that the market is improving, as L.H.N. suggests. The market may just as easily continue to deteriorate. Both parties' realtors appear to believe that the price to be paid in this proposed transaction is a propitious one.

[9]             I am satisfied that it is in the parties' best interests for the property to be sold on the terms proposed by M.Y.T.C. I also agree with M.Y.T.C. that she should be allowed to proceed with the repairs to the basement so that the sale can proceed. The remaining issues that have been raised can be dealt with at trial, if necessary through an unequal division of assets or other relief.

[10]         M.Y.T.C.'s application is therefore allowed and I am granting her the order she seeks on the terms sought.

“Milman J.”


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