Can You Stop a Co-Owner From Forcing the Sale of Your Home? – Banfield v. Ristevska Offers a Cautionary Tale

In the recent Ontario Superior Court decision of Banfield v. Ristevska, 2025 ONSC 3172 (CanLII), the Honourable Justice Myers addressed a contentious application for partition and sale of a co-owned property amidst repeated adjournment requests. This case offers valuable insights into the application of the Partition Act and the court’s approach to managing procedural delays in the face of competing interests, including the well-being of a minor child. Below, we provide an overview, the facts, the applicable law, a discussion of the court’s reasoning, and key lessons learned.

Overview

Banfield v. Ristevska involves a dispute between Kevin Banfield (Applicant) and Bozana Ristevska (Respondent) over a property co-owned as tenants in common at 10 Leila Jackson Terrace, Toronto. Kevin sought an order for partition and sale under the Partition Act, while Bozana requested an adjournment, citing her counsel’s health issues, her inability to find new counsel, and alleged judicial bias. The court dismissed the adjournment request and granted the partition and sale, emphasizing the prima facie right of co-owners to such relief and the need to avoid further delays, particularly for the benefit of a minor child residing in the home.

The Facts

The case stems from the death of Pavlina Banfield Ristevska in November 2019, who owned the Leila Jackson Terrace property as a joint tenant with her spouse, Kevin and her mother, Bozana . Upon Pavlina’s death, her interest passed by survivorship to Kevin and Bozana, who became 50/50 joint tenants. Bozana later severed the joint tenancy, making them tenants in common. Both adults and Pavlina’s young child continued to live in the property, creating a tense living arrangement.

Kevin applied for partition and sale on August 23, 2024, following failed mediation attempts before Justice Gilmore. Bozana sought to delay the application, arguing she intended to buy out Kevin’s interest or that the application was vexatious. She also claimed Kevin misused estate funds, an issue tied to separate dependent’s support applications set for October 2025.

The procedural history was marked by multiple adjournments:

• Bozana’s counsel, Mr. Mortazavi, repeatedly cited health issues and personal circumstances, leading to peremptory adjournments on October 28, 2024, March 10, 2025, and May 15, 2025.
• Bozana failed to meet court-ordered deadlines for filing evidence (September 30, 2024; December 5, 2024; March 31, 2025; May 29, 2025) and a Notice of Intention to Act in Person (May 20, 2025), despite commitments to allow the application to proceed unopposed if she missed deadlines.
• On June 18, 2025, Bozana sought another adjournment, alleging inability to retain new counsel, judicial bias by Justice Papageorgiou, and a need to cross-examine Kevin.

The court, presided over by Justice FL Myers, heard the application on June 18, 2025, addressing both the adjournment request and the merits of the partition and sale application.

The Law

The court relied on the following legal framework:

• Partition and Sale:
  • Partition Act, RSO 1990, c P.4: Section 2 subjects co-owners to the risk of partition and sale, while section 3 allows any person with an interest in land to apply for such relief.
  • Latcham v. Latcham, 2002 CanLII 44960 (ON CA): A co-owner is prima facie entitled to partition and sale unless the respondent proves the application is frivolous, vexatious, malicious, or oppressive (para. 2).
  • Brienza v. Brienza, 2014 ONSC 6942 (CanLII): The respondent bears the burden to establish significant wrongdoing to justify refusing partition and sale (paras. 22–27).
• Adjournment Requests:
  • Khimji v. Dhanani, 2004 CanLII 12037 (ON CA): The court must consider whether an adjournment serves the interests of justice, balancing relevant factors.
  • Toronto-Dominion Bank v. Hylton, 2010 ONCA 752 (CanLII): Factors include the strength of evidence for the adjournment, the history of the matter (including deliberate delay or misuse of process), and the balance of convenience, including prejudice to both parties (paras. 37–38).
  • Rules of Civil Procedure: Rule 39.02(1) requires a party to serve all affidavits before cross-examining, and Rule 39.02(3) mandates reasonable diligence in exercising cross-examination rights.

Discussion

Adjournment Request

The court applied the test from Khimji and Hylton to assess Bozana’s adjournment request:

• Strength of Evidence: Bozana provided no evidence to support her claims of inability to find counsel, language barriers, financial constraints, or judicial bias. Her counsel’s submissions about health issues or external distractions (e.g., international events) were not substantiated, rendering the reasons weak.
• History of Delays: Bozana’s repeated failure to meet deadlines and her breach of commitments (e.g., agreeing to an unopposed hearing if evidence was not filed by March 31, 2025, and failing to file a Notice of Intention to Act in Person) constituted an abuse of process. Three prior peremptory adjournments had already delayed the case significantly.
• Balance of Convenience: The court prioritized the best interests of the minor child, noting Justice Gilmore’s concern about the “toxic” living arrangement. Kevin faced prejudice from prolonged delays, having waited nearly a year for a hearing. Bozana’s lack of evidence and her agreement to an unopposed hearing mitigated any prejudice to her.

The court dismissed the adjournment, finding that further delay would reward Bozana’s non-compliance and undermine justice.

Partition and Sale

The court applied the Partition Act and case law (Latcham, Brienza) to grant Kevin’s application:

• Prima Facie Entitlement: Kevin established co-ownership as tenants in common, entitling him to partition and sale.
• Bozana’s Defences: Bozana provided no evidence to prove the application was frivolous, vexatious, malicious, or oppressive. Her counsel’s submissions about Kevin’s alleged misuse of estate funds were irrelevant, as the property was not an estate asset. Claims of hardship (e.g., lack of alternative housing) were unsupported, and her ownership of a rental property suggested options under the Residential Tenancies Act.
• Buyout Intentions: Bozana’s desire to buy out Kevin’s interest did not negate his right to partition and sale, as no enforceable agreement existed. The court noted that she could still make an offer, but market conditions were not a basis to refuse relief.
• Procedural Fairness: Despite Bozana’s claim of being denied a fair hearing, the court found she had ample opportunity (10 months) to adduce evidence and that her counsel made submissions on the merits.

The court ordered the sale, with Kevin managing the process to avoid further delays, and directed that net proceeds be held in trust pending resolution of monetary disputes in the dependent’s support applications.

Lessons Learned

• Compliance with Court Orders is Critical: Bozana’s repeated failure to meet deadlines and honor commitments (e.g., agreeing to an unopposed hearing) led to the court’s refusal to grant further adjournments. Litigants must treat court-ordered timetables as binding, as emphasized in Hylton (para. 38).
• Evidence is Essential: Bozana’s lack of affidavits to support her adjournment requests and defences underscored the importance of admissible evidence. Unsupported submissions, even if compelling, cannot meet the burden to oppose partition and sale (Brienza, paras. 22–27).
• Partition and Sale is a Strong Right: The Partition Act and cases like Latcham affirm that co-owners have a near-automatic right to partition and sale unless significant wrongdoing is proven. Respondents must present robust evidence of malice or oppression to resist such applications.
• Child’s Best Interests Influence Decisions: The court prioritized the minor child’s well-being, highlighting how family law considerations can intersect with property disputes. Toxic living arrangements can justify expediting proceedings.
• Strategic Delay Tactics Risk Consequences: Bozana’s attempts to defer the partition hearing until dependent’s support issues were resolved were rejected. Litigants employing delay tactics may face adverse inferences and loss of credibility. The costs award has not been dealt with yet.
• Separate Issues for Separate Hearings: The court maintained a clear distinction between the partition application and dependent’s support claims, ensuring procedural efficiency. Litigants should address distinct legal issues in their appropriate forums.

Conclusion

Banfield v. Ristevska illustrates the robust entitlement of co-owners to partition and sale under the *Partition Act* and the court’s intolerance for procedural abuse. The decision underscores the importance of adhering to court schedules, providing evidence, and respecting the interests of vulnerable parties, such as a minor child. For legal practitioners and co-owners, this case serves as a reminder to act diligently and strategically in property disputes, as delays and non-compliance can lead to unfavorable outcomes.

For those facing complex estate litigation or probate disputes, such as those in Banfield v. Ristevska, Bobila Walker Law offers experienced legal representation in Toronto and the surrounding areas. With a proven track record in navigating partition and sale applications, dependent’s support claims, and procedural challenges, our dedicated team ensures your rights are protected and your case is resolved efficiently. Contact Bobila Walker Law today to secure strategic, compassionate, and results-driven legal support tailored to your estate and probate needs. Please contact us at 416-847-1859.

Citation: Banfield v. Ristevska, 2025 ONSC 3172 (CanLII), retrieved on 2025-06-27.