When co-owners of a property have different intentions for the property, or the relationship between the co-owners sours, they often must resort to legal remedies in order to find a way forward. Depending on the circumstances and the nature of the co-owners’ relationship, one of those remedies may be an application for partition and sale under Ontario’s Partition Act. In such an application, the court may be called upon to order partition (breaking up a single property into parts, to separate the owners’ interests) or sale of the property, depending on what is most appropriate in the circumstances.
The Ontario Court of Appeal recently had opportunity to consider the principles applicable to an application for partition in sale in Inniss v Blackett.[1] In the case, the respondent and his grandmother, the appellant, had been listed as joint tenants on title to a house purchased in 2002. They both lived in the house from 2002 until 2008, when their relationship deteriorated and the respondent moved out. In March 2016, the respondent sought partition and sale. The appellant counterclaimed, claiming the home always was hers alone.
At trial, the judge accepted the respondent’s evidence with respect to the parties’ shared contributions to the house purchase, mortgage, and maintenance during the period they lived there together. He accepted that the respondent’s attempt to sell his interest in the property was reasonable, and rejected the appellant’s evidence that a sale of the property would result in hardship.
Assessing the parties’ evidence as to their respective contributions, the trial judge found that the appellant’s contribution to the house was greater (with the appellant holding an 89.93% interest and the respondent holding the remaining 10.17%). The appellant was given the opportunity to buy out the respondent, failing which the property could be sold pursuant to the Partition Act.
The appellant’s appeal of this decision was dismissed. The Ontario Court of Appeal held that:
- The trial judge did not err in rejecting the appellant’s argument that the respondent’s interest in the house was subject to a resulting or constructive trust. The respondent gave value for the property, in contributing to the closing costs of the house and becoming liable on the mortgage. In context, these contributions made the house purchase possible, and therefore were sufficient to meet the threshold of adding value to the property for the purpose of the resulting trust analysis.
- The trial judge did not err in finding that the respondent’s contributions entitled him to an ownership interest. The trial judge found that the respondent contributed a total of $51,200 to the mortgage payments and house maintenance. While there was a dearth of evidence supporting these payments, the trial judge found that it would not have been possible for the appellant to carry the house without the respondent’s assistance.
- The trial judge did not err in ordering that the house should be sold pursuant to the Partition Act. Joint tenants have a prima facie right to force a sale of a property, and the party resisting sale has the onus to demonstrate that the property should not be sold. The trial judge found that the respondent’s desire to sell his interest in the house was reasonable and not malicious, vexatious, or oppressive. The appellant did not meet her onus.
- The Court of Appeal would not interfere with the trial judge’s determination that the respondent was the successful party at trial, or the amount awarded.
This case is an important reminder that an application for partition and sale frequently will require the adjudicator to make findings in relation to the facts and circumstances of the parties’ contributions to the property at issue. Such findings generally amount to findings of fact and findings of mixed fact and law, which are entitled to deference on appeal absent a palpable and overriding error. Parties to applications for partition and sale should think carefully before appealing a ruling on these applications, as it will be difficult to succeed in most cases.
