Joint ownership of property can have dramatic consequences at death—but the distinction between joint tenancy and tenancy in common is often misunderstood. When does conduct between co-owners actually sever a joint tenancy and extinguish the powerful right of survivorship? The answer lies in a nuanced body of law where intention, mutuality, and course of dealings can determine whether an interest passes outside the estate or becomes part of it.
Introduction
In the domain of property law, and by extension in the practice of estate litigation, the term “severance” does not refer to compensation and benefits provided to an employee upon the termination of their employment. Rather, the doctrine of severance refers to the alteration of one’s interest from joint tenancy to tenants in common. For those who may not be aware, while a broad oversimplification, when property is held jointly, it may be held either in joint tenancy or tenancy in common. Although similar in name, the distinction between the two is quite significant.
Where property is held in joint tenancy, the joint tenants provide one-another with a right of survivorship. While the right of survivorship is a complex concept worthy of blog itself, for our purposes the following definition will suffice: The right of survivorship holds that upon the death of a joint tenant, the deceased’s interest is extinguished and the surviving joint tenant’s interest is correspondingly enlarged by the operation of the right of survivorship.[1] The notable and technical distinction here is that a proper conceptualization of the right of survivorship should hold that nothing “passes” from the deceased to the surviving joint tenant.
Tenants in common, on the other hand, does not carry with it the right of survivorship; consequently, parties in a tenancy in common are able to devise or bequest their interest in the jointly held property through testamentary disposition.
While the doctrine of severance appears simple in concept, in application the conduct and analysis of what may or may not qualify as severance is often misunderstood and misapplied. It will be the aim of this blog to clarify, hopefully, the modes of severance.
The Law
The leading case respecting severance is Hansen Estate,[2] which identifies three modes of severance, commonly referred to as the “three rules”,
Rule 1: unilaterally acting on one’s own share, such as selling or encumbering it;
Rule 2: a mutual agreement between the co-owners to sever the joint tenancy; and,
Rule 3: any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.[3]
Rule 1 – Severance by Unilateral Acts
Rule 1 is relatively straightforward. A person can unilaterally sever a joint tenancy upon the transfer or conveyance of their interest. This may be done by the joint tenant conveying their interest to either a third party, or to them themselves. As per sections 41 and 42 of the Conveyancing and Law of Property Act,[4]
Conveyance of property to self
41 A person may convey property to or vest property in the person in like manner as the person could have conveyed the property to or vested the property in another person. R.S.O. 1990, c. C.34, s. 41.
Two or more persons may convey to any one or more of themselves
42 Two or more persons, whether or not they are trustees or personal representatives, may convey and shall be deemed always to have been capable of conveying property vested in them to any one or more of themselves in like manner as they could have conveyed the property to a third party, but, if the persons in whose favour the conveyance is made are, by reason of any fiduciary relationship or otherwise, precluded from validly carrying out the transaction, the conveyance is liable to be set aside.
Notably, however, severance by unilateral act must be an inter vivos transaction, as it has been held that it must be done before the person dies and cannot be done in a will or testamentary disposition.[5] The fact that severance by unilateral act cannot be accomplished by testamentary disposition is logically consistent for two reasons:
- Conceptually, right of survivorship takes precedence over any disposition made by a joint tenant’s will because their interest in the property is extinguished immediately upon their death, prior to the settling or disposition of the Estate; and
- As a general principle of severance, a declared intention not communicated to a co-owner is insufficient to establish a mutual intention to sever a joint tenancy.[6]
Notwithstanding the general principle that a declared intention not communicated to a co-owner is insufficient to sever joint tenancy, severance by unilateral act is permitted because it goes beyond a declared intention, requiring the actual transfer or conveyance of the property.
Rule 2 – Severance by Mutual Agreement
Severance under Rule 2 operates in Equity so as to prevent a party from asserting a right of survivorship where doing so would not do justice between the parties.
The Ontario caselaw is relatively sparse in regard to severance by mutual agreement. As an inverse inference from Hansen Estate, this may be because severance according to this mode requires evidence of an explicit agreement and where there is evidence of an explicit agreement parties are perhaps less likely to litigate.[7]
Rule 3 – Severance by Course of Dealings
The majority of the severance caselaw is focused on severance by course of dealings as this Rule is to govern where there is no evidence of an explicit agreement between the co-owners to sever the joint tenancy.[8] A Court’s assessment under the course of dealing test is inherently fact-specific.[9] The principle to be assessed is whether the co-owners have shown, through their conduct, a common intention to no longer treat their respective shares in the property as an indivisible, unified whole.[10] In regard to severance by course of dealing, Winkler C.J. would go on in Hansen v Hansen Estate, to cite and paraphrase Professor Ziff’s explanation of the course of dealings:
35 …What is determinative under this rule is the expression of intention by the co-owners as evidenced by their conduct: see Robichaud, at p. 45.
36 Rule 3 governs cases where there is no explicit agreement between the co-owners to sever a joint tenancy. In contrast, rule 2 is engaged where a mutual agreement to sever is claimed to exist. This distinction between rule 2 and rule 3 is significant. What follows from this distinction is that the proof of intention contemplated by rule 3 does not require proof of an explicit intention, communicated by each owner to the other(s), to sever the joint tenancy. If such proof were required, then rule 3 would be rendered redundant because a communicated common intention would be tantamount to an agreement. Instead, the mutuality for the purposes of rule 3 is to be inferred from the course of dealing between the parties and does not require evidence of an agreement.
[…]
38 The phrase in rule 3 — “the interests of all were mutually treated” — requires that the co-owners knew of the other’s position and that they all treated their respective interests in the property as no longer being held jointly. Such knowledge can be inferred from communications or conduct. The requirement that the co-owners knew that their interests in the property were being mutually treated as held in common was emphasized in Williams v. Hensman, at p. 867:
[I]t will not suffice to rely on an intention, with respect to the particular share, declared only behind the backs of the other persons interested.[11]
Guidance for the interpretation of Hansen was notably provided by the Honourable Justice Wilson J. (as she was then), in Wong v. Wong,[12] where Wilson J. begins by relying on paragraph 7 of Hansen, reiterating that a Court is required to discern whether the parties intended to mutually treat their interests in the property as constituting a tenancy-in-common and directs that the Court must look to each co-owner’s entire course of conduct, based on the totality of the evidence.[13] Wilson J. then provides a following summary of the jurisprudence on severance and course of dealings holding, that there is no formula or class of cases to guide the application of test; rather, a course of dealings is a fact-specific inquiry, and the burden of proof is upon the party seeking to establish the severance:
[72] There is no formula or class of cases to guide the application of this test. A course of dealing is a fact-specific inquiry, and the burden of proof is upon the party seeking to establish a severance, in this case the Plaintiffs.[14]
Severance by course of dealings is sometimes misunderstood as permitting severance on the basis of a unilateral intention manifested through conduct. Properly understood, however, the doctrine continues to emphasize mutuality. While proof of an explicit agreement is not required, the requisite mutual intention must still be inferred from the parties’ communications and conduct over time. The inquiry therefore focuses on whether the co-owners, with knowledge of one another’s position, mutually treated their respective interests as no longer forming an indivisible joint tenancy. Accordingly, courts must examine the totality of the parties’ dealings to determine whether their conduct demonstrates a shared understanding that the joint tenancy had effectively come to an end.
Final Remarks
Ultimately, the doctrine of severance illustrates how the legal characterization of jointly held property can dramatically alter the distribution of assets on death. While the mechanics of severance are conceptually straightforward, the jurisprudence demonstrates that the inquiry is often highly contextual, particularly where severance is alleged to arise from the parties’ course of dealings. Courts will not lightly infer that the powerful right of survivorship has been displaced; rather, the evidence must demonstrate that the parties’ conduct reflects a mutual departure from the unity that defines joint tenancy.
—
[1] Jackson v. Rosenberg, 2023 ONSC 4403, at para 66 (“Jackson v Rosenberg”).
[2] Hansen Estate v. Hansen, 2012 ONCA 112, (“Hansen Estate”); recently applied in Chieffallo v. Blair, 2025 ONSC 3411, at para 64, affirms that Hansen Estate remains the dominant paradigm for assessing severance.
[3] Ibid., at para 34; citing Burgess, at pp. 152-53 All E.R.; Robichaud v. Watson (1983), 1983 CanLII 1701 (ON SC), 42 O.R. (2d) 38, [1983] O.J. No. 3046 (H.C.J.), at p. 44 O.R.; Bruce Ziff, Principles of Property Law, 5th ed. (Toronto: Carswell, 2010), at pp. 342 and 345.
[4] Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34.
[5] Jackson v Rosenberg, at para 82; citing Thompson v Elliot Estate, 2020 ONSC 1004, at paras 48-50.
[6] Hansen Estate, at para 63.
[7] Ibid., at para 36.
[8] Ibid.
[9] Ibid., at para 39.
[10] Ibid.
[11] Ibid., at paras 35-36 and 38.
[12] Wong v Wong, 2019 ONSC 3937, at para 7 (“Wong v Wong”).
[13] Hansen Estate, at para 7.
[14] Wong v. Wong, at paras 70 and 72; citing National Trust Co. v. McKee, 1975 442 (ON CA), 7 O.R. (2d) 614, at p. 618 and Jansen v. Niels Estate, 2017 ONCA 312, at para 34.
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Written by: Grant Swedak
Posted on: March 18, 2026
Categories: Commentary, WEL Newsletter
Joint ownership of property can have dramatic consequences at death—but the distinction between joint tenancy and tenancy in common is often misunderstood. When does conduct between co-owners actually sever a joint tenancy and extinguish the powerful right of survivorship? The answer lies in a nuanced body of law where intention, mutuality, and course of dealings can determine whether an interest passes outside the estate or becomes part of it.
Introduction
In the domain of property law, and by extension in the practice of estate litigation, the term “severance” does not refer to compensation and benefits provided to an employee upon the termination of their employment. Rather, the doctrine of severance refers to the alteration of one’s interest from joint tenancy to tenants in common. For those who may not be aware, while a broad oversimplification, when property is held jointly, it may be held either in joint tenancy or tenancy in common. Although similar in name, the distinction between the two is quite significant.
Where property is held in joint tenancy, the joint tenants provide one-another with a right of survivorship. While the right of survivorship is a complex concept worthy of blog itself, for our purposes the following definition will suffice: The right of survivorship holds that upon the death of a joint tenant, the deceased’s interest is extinguished and the surviving joint tenant’s interest is correspondingly enlarged by the operation of the right of survivorship.[1] The notable and technical distinction here is that a proper conceptualization of the right of survivorship should hold that nothing “passes” from the deceased to the surviving joint tenant.
Tenants in common, on the other hand, does not carry with it the right of survivorship; consequently, parties in a tenancy in common are able to devise or bequest their interest in the jointly held property through testamentary disposition.
While the doctrine of severance appears simple in concept, in application the conduct and analysis of what may or may not qualify as severance is often misunderstood and misapplied. It will be the aim of this blog to clarify, hopefully, the modes of severance.
The Law
The leading case respecting severance is Hansen Estate,[2] which identifies three modes of severance, commonly referred to as the “three rules”,
Rule 1: unilaterally acting on one’s own share, such as selling or encumbering it;
Rule 2: a mutual agreement between the co-owners to sever the joint tenancy; and,
Rule 3: any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.[3]
Rule 1 – Severance by Unilateral Acts
Rule 1 is relatively straightforward. A person can unilaterally sever a joint tenancy upon the transfer or conveyance of their interest. This may be done by the joint tenant conveying their interest to either a third party, or to them themselves. As per sections 41 and 42 of the Conveyancing and Law of Property Act,[4]
Conveyance of property to self
41 A person may convey property to or vest property in the person in like manner as the person could have conveyed the property to or vested the property in another person. R.S.O. 1990, c. C.34, s. 41.
Two or more persons may convey to any one or more of themselves
42 Two or more persons, whether or not they are trustees or personal representatives, may convey and shall be deemed always to have been capable of conveying property vested in them to any one or more of themselves in like manner as they could have conveyed the property to a third party, but, if the persons in whose favour the conveyance is made are, by reason of any fiduciary relationship or otherwise, precluded from validly carrying out the transaction, the conveyance is liable to be set aside.
Notably, however, severance by unilateral act must be an inter vivos transaction, as it has been held that it must be done before the person dies and cannot be done in a will or testamentary disposition.[5] The fact that severance by unilateral act cannot be accomplished by testamentary disposition is logically consistent for two reasons:
Notwithstanding the general principle that a declared intention not communicated to a co-owner is insufficient to sever joint tenancy, severance by unilateral act is permitted because it goes beyond a declared intention, requiring the actual transfer or conveyance of the property.
Rule 2 – Severance by Mutual Agreement
Severance under Rule 2 operates in Equity so as to prevent a party from asserting a right of survivorship where doing so would not do justice between the parties.
The Ontario caselaw is relatively sparse in regard to severance by mutual agreement. As an inverse inference from Hansen Estate, this may be because severance according to this mode requires evidence of an explicit agreement and where there is evidence of an explicit agreement parties are perhaps less likely to litigate.[7]
Rule 3 – Severance by Course of Dealings
The majority of the severance caselaw is focused on severance by course of dealings as this Rule is to govern where there is no evidence of an explicit agreement between the co-owners to sever the joint tenancy.[8] A Court’s assessment under the course of dealing test is inherently fact-specific.[9] The principle to be assessed is whether the co-owners have shown, through their conduct, a common intention to no longer treat their respective shares in the property as an indivisible, unified whole.[10] In regard to severance by course of dealing, Winkler C.J. would go on in Hansen v Hansen Estate, to cite and paraphrase Professor Ziff’s explanation of the course of dealings:
35 …What is determinative under this rule is the expression of intention by the co-owners as evidenced by their conduct: see Robichaud, at p. 45.
36 Rule 3 governs cases where there is no explicit agreement between the co-owners to sever a joint tenancy. In contrast, rule 2 is engaged where a mutual agreement to sever is claimed to exist. This distinction between rule 2 and rule 3 is significant. What follows from this distinction is that the proof of intention contemplated by rule 3 does not require proof of an explicit intention, communicated by each owner to the other(s), to sever the joint tenancy. If such proof were required, then rule 3 would be rendered redundant because a communicated common intention would be tantamount to an agreement. Instead, the mutuality for the purposes of rule 3 is to be inferred from the course of dealing between the parties and does not require evidence of an agreement.
[…]
38 The phrase in rule 3 — “the interests of all were mutually treated” — requires that the co-owners knew of the other’s position and that they all treated their respective interests in the property as no longer being held jointly. Such knowledge can be inferred from communications or conduct. The requirement that the co-owners knew that their interests in the property were being mutually treated as held in common was emphasized in Williams v. Hensman, at p. 867:
[I]t will not suffice to rely on an intention, with respect to the particular share, declared only behind the backs of the other persons interested.[11]
Guidance for the interpretation of Hansen was notably provided by the Honourable Justice Wilson J. (as she was then), in Wong v. Wong,[12] where Wilson J. begins by relying on paragraph 7 of Hansen, reiterating that a Court is required to discern whether the parties intended to mutually treat their interests in the property as constituting a tenancy-in-common and directs that the Court must look to each co-owner’s entire course of conduct, based on the totality of the evidence.[13] Wilson J. then provides a following summary of the jurisprudence on severance and course of dealings holding, that there is no formula or class of cases to guide the application of test; rather, a course of dealings is a fact-specific inquiry, and the burden of proof is upon the party seeking to establish the severance:
[72] There is no formula or class of cases to guide the application of this test. A course of dealing is a fact-specific inquiry, and the burden of proof is upon the party seeking to establish a severance, in this case the Plaintiffs.[14]
Severance by course of dealings is sometimes misunderstood as permitting severance on the basis of a unilateral intention manifested through conduct. Properly understood, however, the doctrine continues to emphasize mutuality. While proof of an explicit agreement is not required, the requisite mutual intention must still be inferred from the parties’ communications and conduct over time. The inquiry therefore focuses on whether the co-owners, with knowledge of one another’s position, mutually treated their respective interests as no longer forming an indivisible joint tenancy. Accordingly, courts must examine the totality of the parties’ dealings to determine whether their conduct demonstrates a shared understanding that the joint tenancy had effectively come to an end.
Final Remarks
Ultimately, the doctrine of severance illustrates how the legal characterization of jointly held property can dramatically alter the distribution of assets on death. While the mechanics of severance are conceptually straightforward, the jurisprudence demonstrates that the inquiry is often highly contextual, particularly where severance is alleged to arise from the parties’ course of dealings. Courts will not lightly infer that the powerful right of survivorship has been displaced; rather, the evidence must demonstrate that the parties’ conduct reflects a mutual departure from the unity that defines joint tenancy.
—
[1] Jackson v. Rosenberg, 2023 ONSC 4403, at para 66 (“Jackson v Rosenberg”).
[2] Hansen Estate v. Hansen, 2012 ONCA 112, (“Hansen Estate”); recently applied in Chieffallo v. Blair, 2025 ONSC 3411, at para 64, affirms that Hansen Estate remains the dominant paradigm for assessing severance.
[3] Ibid., at para 34; citing Burgess, at pp. 152-53 All E.R.; Robichaud v. Watson (1983), 1983 CanLII 1701 (ON SC), 42 O.R. (2d) 38, [1983] O.J. No. 3046 (H.C.J.), at p. 44 O.R.; Bruce Ziff, Principles of Property Law, 5th ed. (Toronto: Carswell, 2010), at pp. 342 and 345.
[4] Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34.
[5] Jackson v Rosenberg, at para 82; citing Thompson v Elliot Estate, 2020 ONSC 1004, at paras 48-50.
[6] Hansen Estate, at para 63.
[7] Ibid., at para 36.
[8] Ibid.
[9] Ibid., at para 39.
[10] Ibid.
[11] Ibid., at paras 35-36 and 38.
[12] Wong v Wong, 2019 ONSC 3937, at para 7 (“Wong v Wong”).
[13] Hansen Estate, at para 7.
[14] Wong v. Wong, at paras 70 and 72; citing National Trust Co. v. McKee, 1975 442 (ON CA), 7 O.R. (2d) 614, at p. 618 and Jansen v. Niels Estate, 2017 ONCA 312, at para 34.
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