1. Introduction

A joint tenant has a prima facie right to an order for partition or sale. If the other joint tenant seeks to prevent a partition or sale by claiming full title under a presumed resulting trust that issue may have to be addressed at trial, but in exceptional situations the court can grant partial summary judgment ordering a partition or sale. The court examined these issues in Hutton v Wakely.[1]

2. Facts

The Applicant and Respondent were not married. They began cohabiting in 2007 and bought a house when the Applicant was expecting a child. They purchased the property with an inheritance received by the Respondent but took title as joint tenants. They separated in 2012, after which the Applicant moved out. The property was subject to a line of credit for which both parties were responsible. In 2023 the Applicant paid $3,000 to the Bank of Montreal in response to its advice that it would take further action if the parties did not pay the arrears on the line of credit. The property taxes and utilities for the Property had been in arrears since 2001. The Applicant brought proceedings to resolve family matters between her and the Respondent. Then she brought this motion in 2023 for partial summary judgment granting an order for sale of the Property and for ancillary relief under r. 16, s 10(1) of the Family Law Rules, (‘FLR’) and ss 2 and 3(1) of the Partition Act.[2] The Respondent claimed full title of the Property under a presumed resulting trust and argued that a sale of the Property would be oppressive to him.

3. Analysis and Judgment

Madam Justice Vella noted, rightly, that s 10(1) of the Family Law Act[3] (‘FLA’) (which empowers the court to determine the ownership of property or possession between spouses) did not apply since the parties were not married.

She also noted that under r. 16(6) of the FLR the court must make a final order if there is no genuine issue requiring trial, and that under r. 16(6.1) the court may exercise special fact-finding powers to determine if there is a genuine issue requiring a trial, unless it is in the interest of justice that those powers be exercised only at a trial. However, if the only genuine issue is a question of law, the court must decide the issue and make a final order.

Her Honour then considered whether the Respondent’s claim of resulting trust raised a genuine issue requiring a trial. She noted, again rightly, that the Applicant could not rely on the presumption of advancement, since that presumption, which is codified in s 14 of the FLA, does not apply to unmarried couples. Consequently, the onus was on the Applicant to rebut the presumption of resulting trust and prove that the Respondent intended the transfer as a gift. The Respondent denied a gift but offered no particulars in support of that assertion. But the evidence adduced by the Applicant was also sparse. Thus, the evidentiary record was incomplete on both sides. This meant that the presumption of resulting trust raised a genuine issue for trial. And at the trial the court would have access to a more complete evidentiary record and would be able to assess the credibility of both parties on the basis of their viva voce evidence.

However, that did not end the matter, because the Applicant argued that the resulting trust was barred by limitation. Her Honour quoted s 4 of the Real Property Limitations Act,[4] which states:

No person shall … bring an action to recover any land … within ten years after the time at which the right … to bring such action, first accrued to the person … bringing it.

Her Honour applied McConnell v Huxtable,[5] in which the court held, at paras 28-30 that s 4 applies to claims based in unjust enrichment in which a party seeks a remedial constructive trust over real property in the context of a family law dispute. That case in turn relied on the judgment of Gillese JA in Hartman Estate v Hartfam Holdings Ltd,[6] which discussed the question whether claims to land based on resulting or constructive trusts are subject to a statutory limitation period. In applying McConnell, Justice Vella stated, ‘By the same rationale, the same limitation period applies to claims seeking a resulting trust over real property within a family law dispute…’

Her Honour went on to hold that the triggering date for the commencement of the 10-year limitation period is the date of the parties’ separation, since that is the date on which family property is to be divided. That date was 17 August 2012. That meant that more than ten years had lapsed before the Respondent brought his proceeding claiming a resulting trust in his Answer to the Applicant’s claim. Consequently, he was barred from proceeding with the claim under s 4 of the Real Property Limitations Act. And that meant that there was no genuine issue for trial.

Her Honour then turned to the Respondent’s argument that a sale would be oppressive. She found that it would not be or if it would be the prejudice would be mitigated by requiring that the proceeds of sale be held in trust, subject to a payment of $50,000 to each party. She made an order for sale of the property, and urged the parties to attempt to work out a plan for sale of the property and gave directions for its conduct.

Her Honour recognized that granting partial summary judgment will be rare and should be granted only for issues that can readily be bifurcated from the remaining issues that need to be tried. She found that this one of such rare cases. Besides, there was a compelling reason to grant the motion, since it was established that the Property was at risk of foreclosure proceedings, and also because property taxes and utilities were in arrears. The remaining issues between the parties would  be decided at trial.

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[1]    2023 ONSC 6964.

[2]    RSO 1990, c P.4.

[3]    RSO 1990, c F.3.

[4]    RSO 1990, c L.15.

[5]    2014 ONCA 86.

[6]    2006 CarswellOnt 80, 263 DLR 4th 640, para 85.