Guardians Prevail: Court Upholds Litigation Guardians’ Authority in Family Property Battle

Ross v. Luypaert, 2025 ONCA 236 – A Tale of Family, Property, and Procedural Fairness

On March 27, 2025, the Court of Appeal for Ontario released its decision in Ross v. Luypaert, 2025 ONCA 236, a case that pits family dynamics against property rights and tests the limits of procedural fairness. This appeal stemmed from a dispute between siblings over two properties owned by their aging, incapable parents. The ruling offers valuable insights into partition and sale under the Partition Act, writs of possession, and the discretion courts wield over adjournments. Let’s break it down.

Facts: A Family Feud Over Real Estate

The respondents, Sibylle DiLella (“Yonna”) and Lorraine Hagen (“Lorraine”), are the litigation guardians for their parents, Regine Ross and Douglas Ross, who are no longer capable of managing their affairs. The appellant, Rene Luypaert, is their brother. At the heart of the dispute are two properties in Guelph, Ontario:

1. The Galt Property (82 Galt Street) – A fully leased duplex jointly owned by Regine, Douglas, and Rene.
2. The Bristol Property (114 Bristol Street) – A residence solely owned by Regine but occupied by Rene.

Yonna and Lorraine sought to sell the Galt Property and evict Rene from the Bristol Property to fund their parents’ ongoing care. Rene refused, sparking a legal battle. The respondents applied for a partition and sale of the Galt Property and a writ of possession for the Bristol Property. Rene, however, failed to file responding materials as required by a prior court order (the “MacNeil Order” from September 29, 2023), which set a peremptory timetable and barred late filings.

At the application hearing on February 28, 2024, before Justice Michael J. Valente, Rene—now self-represented after firing his lawyer—requested an adjournment to retain new counsel and submit affidavit evidence. The judge denied the request, excluded Rene’s late evidence, and granted the respondents’ requests. Rene appealed, raising four grounds: procedural unfairness, errors in applying the Partition Act, an improper writ of possession, and invalidity of the powers of attorney.

The Law: Partition, Possession, and Procedural Discretion

The Court of Appeal’s decision hinges on several legal frameworks:

• Partition and Sale (Partition Act, R.S.O. 1990, c. P.4): Under s. 3, any co-owner of a property has a prima facie right to seek partition or sale, unless the opposing party proves malicious, vexatious, or oppressive conduct. Appeals from such orders typically go to the Divisional Court (s. 7), but s. 6(2) of the Courts of Justice Act (CJA) allows the Court of Appeal to hear them if other issues in the case fall within its jurisdiction.
• Writ of Possession (Rules of Civil Procedure, r. 60.10): A property owner can reclaim possession from an occupant without a legal tenancy agreement.
• Procedural Fairness and Adjournments: Courts have broad discretion to grant or deny adjournments, guided by factors like compliance with prior orders, prior delays, and the need for timely resolution (Graham v. Vandersloot, 2012 ONCA 60).
• Powers of Attorney: Litigation guardians must act under valid authority, but challenges to their status require evidence.

The court first addressed its jurisdiction, confirming it could hear the appeal under s. 6(2) of the CJA because the writ of possession (not under the Partition Act) brought part of the case within its purview.

Analysis: Four Grounds, No Wins for Rene

The Court of Appeal tackled Rene’s four arguments systematically:

1. Procedural Unfairness: Rene claimed the refusal of his adjournment request denied him a fair hearing. The court disagreed, emphasizing the application judge’s discretion. Justice Valente didn’t rely solely on the peremptory nature of the MacNeil Order but noted Rene’s “ample opportunity” to comply, his prior representation, and his failure to act after firing his lawyer months earlier. The court found no evidence Rene was a vulnerable self-represented litigant—rather, he was a seasoned “landlord and real estate investor” who knew the stakes.
2. Partition and Sale of the Galt Property: Rene argued the judge misapplied the Partition Act by ignoring his claim of beneficial ownership (alleging his parents were bare trustees) and the respondents’ “unclean hands.” The court upheld the ruling, finding no evidence supported Rene’s trust claim. His allegations of misleading conduct didn’t rise to the level of malice or oppression needed to block the sale. Notably, the judge safeguarded Rene’s interests by ordering the sale proceeds paid into court, pending further argument.
3. Writ of Possession for the Bristol Property: Rene contested the eviction order, arguing the judge wrongly relied on his “unsworn statement” that he was the sole occupant with no tenancy agreement. The court dismissed this, clarifying the statement merely confirmed the record. As Regine owned the property outright, Rene had no legal basis to stay.
4. Powers of Attorney: Rene challenged Yonna and Lorraine’s authority, alleging fraud and an incomplete document. The court found no evidence of fraud and deemed any technical flaw in one power of attorney irrelevant—both sisters were still proper litigation guardians.  Rene’s attempt to undermine Yonna and Lorraine’s roles as litigation guardians faltered, as the court found his claims of fraudulent powers of attorney lacked any evidentiary backbone, reinforcing the presumption of validity in such appointments

Conclusion: A Lesson in Compliance and Evidence

The Court of Appeal dismissed Rene’s appeal, affirming Justice Valente’s orders and awarding $12,500 in costs to the respondents. This case underscores key takeaways for litigants:

• Court Orders Matter: Ignoring peremptory deadlines can sink your case. Rene’s failure to file materials on time left him defenseless.
• Evidence is King: Bare assertions—like Rene’s trust claim or fraud allegations—don’t sway courts without proof.
• Discretion Rules: Judges have wide latitude on adjournments, and appellate courts rarely interfere absent clear unfairness.
• Family Ties Don’t Trump Property Rights: The need to fund Regine and Douglas’s care prevailed over Rene’s resistance.

For property owners, co-owners, or family members navigating similar disputes, Ross v. Luypaert is a stark reminder: play by the rules, or risk losing your stake. The Galt Property will be sold, Rene will vacate Bristol Street, and the siblings’ saga moves to its next chapter—likely over those sale proceeds still held in court.