In Gruber v. Glickman Estate et al., 2025 ONSC 258[1] (“Gruber”), a couple, Anne and Jacob, jointly purchased during lifetime a share in a Co-operative Housing Corporation (the “Share”). Following each spouses passing, the estate trustee of Anne’s Estate (“Anne’s Estate”) brought forward a motion to determine whether the Share was held by the couple through joint tenancy or tenancy in common, and if so, was the Share subject to the presumption of resulting trust as outlined by s.14 in the Family law Act (“FLA”).
The court determined that the Share was owned by the couple jointly, and therefore joint tenancy applied. [2]
Background:
The Share:
Title to the Co-operative Housing Corporation, was not held directly through land title, but rather, by way of shares. The Share certificate set out the registered owners of the Share as both “Anne and Jacob”. The interest in the Share was not defined as jointly held between Jacob or Anne, or whether they were each entitled to a 50% interest.[3]
Anne’s Will and the Question for the Court:
Anne and Jacob were married for several decades but lived apart towards the end of their lives. Anne passed away on December 21, 2021, and Jacob passed away shortly after, on June 10, 2022. Anne’s Last Will and Testament (“Will”) provided Jacob with her interest in the Share, as well as bequests to 28 other family members and friends. This did not provide ample residue from the Anne’s Estate to pay her taxes and liabilities, particularly from the tax that arose from Anne’s rental properties. For this reason, Anne’s Estate sought to determine whether her Estate was fully entitled to the full interest of the Share.
Jacob’s Estate Trustee (“Jacob’s Estate”) was of the position that Anne’s Estate should transfer Anne’s interest in the Share to Jacob Estate.
The Issue:
The Family Law Act:
Jacob’s Estate asserted that s. 14(a) of the FLA settled the issue of ownership regarding the Share[4]. S. 14 out of the FLA states the following:
14 The rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses, as if they were not married, except that,
(a) the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants;
It is stated within s.14 of the FLA, that the presumption of resulting trust applies to married spouses, unless the property is held in joint tenancy. The court citing McManus v. Argiro[5], states that if it is unclear whether property is held in joint tenancy, “intention must be inferred from the circumstances”.[6] The Court went on to note that when determining joint tenancy, intention at the time of purchase must be considered.
Jacob’s Estate points to circumstantial evidence, including Anne’s intention to leave Jacob with the Share upon her death, despite not clarifying the percentage of ownership to be given to Jacob. Additionally, Jacob’s Estate notes that during her lifetime, Anne did not go through the efforts of altering or severing the Joint tenancy. On this basis, Jacob’s estate contended that the Share would pass to the surviving spouse unless the is evidence of any “contrary intention”. [7]
Anne’s Estate submitted that s.14 of the FLA may not be applicable as “the presumption of joint tenancy applies only to property where title is registered to spouses as joint tenants”.[8] Since the ownership of the Share did not specify the legal arrangement, Anne’s Estate asserted that s.14 does not entitle Jacob’s Estate to the entirety of the Share.
Equity:
The court then analysed the principles set out in Hardy v. Estate of Louise Winters Hardy[9], stating that equity will favour tenancy in common when two or more people purchase property without detailing how interest in title will be shared. The court stated the following:
[21] It is well established that the Courts of Equity did not favour joint tenancy; e.g ., because the entire property subject to such a joint tenancy at common law would belong to the survivor, and the representatives of the deceased would receive nothing. Such an outcome was not viewed as fair or “equitable”, except – possibly – from the standpoint of pure chance determining which owner would take by right of survivorship.[10]
This was interpreted into legislation through s. 13(1) of the Conveyancing and Law of Property Act (“CPLA”), which asserts the following[11]:
13 (1) Where by any letters patent, assurance or will, made and executed after the 1st day of July, 1834, land has been or is granted, conveyed or devised to two or more persons, other than executors or trustees, in fee simple or for any less estate, it shall be considered that such persons took or take as tenants in common and not as joint tenants, unless an intention sufficiently appears on the face of the letters patent, assurance or will, that they are to take as joint tenants. R.S.O. 1990, c. C.34, s. 13 (1).
Importantly, the CPLA only deals with real property, meanwhile the Co-operative Corporations Act (“CCA”) asserts that shares of a co-operative are personal property.
Anne’s Estate asserted that the Share should be viewed as Land for the purpose of the CLPA, and therefore the presumption of tenancy in common would apply. The decision of Regina v. Labelle supports this assertion stating rights arising out of land are the same thing as Land (I.e. labelled in the decision as corporeal hereditaments). For this reason, Anne’s Estate submitted that “the rights arising from the land would include Anne and Jacob’s interest in the Share” because the agreement they signed provided them “rights to occupy the land owned by the Corporation”.[12]
Analysis:
The Court asserted that they could not expand the definition of land under the CPLA, to include shares in a co-operative housing unit, and therefore tenancy in common does not apply.[13]
The first reason being that the CCA defines shares in a co-operative as personal property. The second reason being those statutes in Ontario, such as the CPLA and the Ontario Business Corporations Act does not contemplate that a shareholding interest to a corporeal hereditament (rights arising out of Land) actually attaches to land.[14]
Instead, the court found that the presumption of the joint tenancy, found at common law applied, and therefore the Share was owned jointly between Anne and Jacob. On this basis, s.14 of the FLA applied. The court found that the presumption of resulting trust was rebutted given there was no evidence that the Share certificate indicated a division of interest, Anne’s Will bequeathed “all of her interest” in the share to Jacob, the spouses were not divorced, there was no evidence that Anne or Jacob contributed differently to the purchase price.[15]
For this reason, the entirety of the interest in the Share devolved to Jacob’s Estate since Jacob owned the Share in Joint Tenancy with Anne.
—
[1] Gruber v. Glickman Estate et al., 2025 ONSC 258 (Gruber)
[2] Ibid at para 3.
[3] Ibid at para 7.
[4] Ibid at para 14.
[5] McManus v. Argiro, 2021 ONSC 6385 at para 12
[6] Gruber at para 16.
[7] Ibid at para 17.
[8] Ibid at para 19.
[9] Hardy v. Estate of Louise Winters Hardy, 2022 ONSC 1966
[10] Ibid at para 21.
[11] Ibid at para 22.
[12] Ibid at para 27.
[13] Ibid at para 31.
[14] Ibid at para 31.
[15] Ibid at para 33.
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Written by: Gabriella Banhara
Posted on: January 28, 2025
Categories: Commentary, Trusts, WEL Newsletter
In Gruber v. Glickman Estate et al., 2025 ONSC 258[1] (“Gruber”), a couple, Anne and Jacob, jointly purchased during lifetime a share in a Co-operative Housing Corporation (the “Share”). Following each spouses passing, the estate trustee of Anne’s Estate (“Anne’s Estate”) brought forward a motion to determine whether the Share was held by the couple through joint tenancy or tenancy in common, and if so, was the Share subject to the presumption of resulting trust as outlined by s.14 in the Family law Act (“FLA”).
The court determined that the Share was owned by the couple jointly, and therefore joint tenancy applied. [2]
Background:
The Share:
Title to the Co-operative Housing Corporation, was not held directly through land title, but rather, by way of shares. The Share certificate set out the registered owners of the Share as both “Anne and Jacob”. The interest in the Share was not defined as jointly held between Jacob or Anne, or whether they were each entitled to a 50% interest.[3]
Anne’s Will and the Question for the Court:
Anne and Jacob were married for several decades but lived apart towards the end of their lives. Anne passed away on December 21, 2021, and Jacob passed away shortly after, on June 10, 2022. Anne’s Last Will and Testament (“Will”) provided Jacob with her interest in the Share, as well as bequests to 28 other family members and friends. This did not provide ample residue from the Anne’s Estate to pay her taxes and liabilities, particularly from the tax that arose from Anne’s rental properties. For this reason, Anne’s Estate sought to determine whether her Estate was fully entitled to the full interest of the Share.
Jacob’s Estate Trustee (“Jacob’s Estate”) was of the position that Anne’s Estate should transfer Anne’s interest in the Share to Jacob Estate.
The Issue:
The Family Law Act:
Jacob’s Estate asserted that s. 14(a) of the FLA settled the issue of ownership regarding the Share[4]. S. 14 out of the FLA states the following:
14 The rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses, as if they were not married, except that,
(a) the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants;
It is stated within s.14 of the FLA, that the presumption of resulting trust applies to married spouses, unless the property is held in joint tenancy. The court citing McManus v. Argiro[5], states that if it is unclear whether property is held in joint tenancy, “intention must be inferred from the circumstances”.[6] The Court went on to note that when determining joint tenancy, intention at the time of purchase must be considered.
Jacob’s Estate points to circumstantial evidence, including Anne’s intention to leave Jacob with the Share upon her death, despite not clarifying the percentage of ownership to be given to Jacob. Additionally, Jacob’s Estate notes that during her lifetime, Anne did not go through the efforts of altering or severing the Joint tenancy. On this basis, Jacob’s estate contended that the Share would pass to the surviving spouse unless the is evidence of any “contrary intention”. [7]
Anne’s Estate submitted that s.14 of the FLA may not be applicable as “the presumption of joint tenancy applies only to property where title is registered to spouses as joint tenants”.[8] Since the ownership of the Share did not specify the legal arrangement, Anne’s Estate asserted that s.14 does not entitle Jacob’s Estate to the entirety of the Share.
Equity:
The court then analysed the principles set out in Hardy v. Estate of Louise Winters Hardy[9], stating that equity will favour tenancy in common when two or more people purchase property without detailing how interest in title will be shared. The court stated the following:
[21] It is well established that the Courts of Equity did not favour joint tenancy; e.g ., because the entire property subject to such a joint tenancy at common law would belong to the survivor, and the representatives of the deceased would receive nothing. Such an outcome was not viewed as fair or “equitable”, except – possibly – from the standpoint of pure chance determining which owner would take by right of survivorship.[10]
This was interpreted into legislation through s. 13(1) of the Conveyancing and Law of Property Act (“CPLA”), which asserts the following[11]:
13 (1) Where by any letters patent, assurance or will, made and executed after the 1st day of July, 1834, land has been or is granted, conveyed or devised to two or more persons, other than executors or trustees, in fee simple or for any less estate, it shall be considered that such persons took or take as tenants in common and not as joint tenants, unless an intention sufficiently appears on the face of the letters patent, assurance or will, that they are to take as joint tenants. R.S.O. 1990, c. C.34, s. 13 (1).
Importantly, the CPLA only deals with real property, meanwhile the Co-operative Corporations Act (“CCA”) asserts that shares of a co-operative are personal property.
Anne’s Estate asserted that the Share should be viewed as Land for the purpose of the CLPA, and therefore the presumption of tenancy in common would apply. The decision of Regina v. Labelle supports this assertion stating rights arising out of land are the same thing as Land (I.e. labelled in the decision as corporeal hereditaments). For this reason, Anne’s Estate submitted that “the rights arising from the land would include Anne and Jacob’s interest in the Share” because the agreement they signed provided them “rights to occupy the land owned by the Corporation”.[12]
Analysis:
The Court asserted that they could not expand the definition of land under the CPLA, to include shares in a co-operative housing unit, and therefore tenancy in common does not apply.[13]
The first reason being that the CCA defines shares in a co-operative as personal property. The second reason being those statutes in Ontario, such as the CPLA and the Ontario Business Corporations Act does not contemplate that a shareholding interest to a corporeal hereditament (rights arising out of Land) actually attaches to land.[14]
Instead, the court found that the presumption of the joint tenancy, found at common law applied, and therefore the Share was owned jointly between Anne and Jacob. On this basis, s.14 of the FLA applied. The court found that the presumption of resulting trust was rebutted given there was no evidence that the Share certificate indicated a division of interest, Anne’s Will bequeathed “all of her interest” in the share to Jacob, the spouses were not divorced, there was no evidence that Anne or Jacob contributed differently to the purchase price.[15]
For this reason, the entirety of the interest in the Share devolved to Jacob’s Estate since Jacob owned the Share in Joint Tenancy with Anne.
—
[1] Gruber v. Glickman Estate et al., 2025 ONSC 258 (Gruber)
[2] Ibid at para 3.
[3] Ibid at para 7.
[4] Ibid at para 14.
[5] McManus v. Argiro, 2021 ONSC 6385 at para 12
[6] Gruber at para 16.
[7] Ibid at para 17.
[8] Ibid at para 19.
[9] Hardy v. Estate of Louise Winters Hardy, 2022 ONSC 1966
[10] Ibid at para 21.
[11] Ibid at para 22.
[12] Ibid at para 27.
[13] Ibid at para 31.
[14] Ibid at para 31.
[15] Ibid at para 33.
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