Defending a Partition Act Application by a Co-Owner in Ontario

If a co-owner has started a court application to force the sale of a home or other land you share, it can feel like the decision has already been made. That is not necessarily so. The application is a request to the court, and how it turns out depends on the facts.

This article explains what the Partition Act covers, how to think about a defence in practical terms, and how to prepare. Because the outcome turns on the facts of your co-ownership, treat this as a starting point for a conversation with a lawyer.

What the Partition Act allows

Section 2 of the Partition Act allows joint tenants, tenants in common and other interested parties in Ontario land to be compelled to partition or sale. In everyday terms, one co-owner can ask a court to divide the property or, more commonly with a house, to order it sold so the proceeds can be shared.

Ontario's e-Laws shows the Act's consolidation period from December 15, 2009. Because statutes and court decisions can change, have a lawyer confirm the current wording and the case law that applies to you.

Who this can affect

Common situations include former partners who bought together, siblings who inherited a home, and relatives or friends who pooled money on a purchase. How you hold title, and what was agreed when you bought, shapes your position.

Thinking about a defence

How a court approaches a request to force a sale depends on the facts and on the current case law, so it is worth confirming with a lawyer. Which arguments succeed depends on your situation, and evidence will matter.

Points that people in your position commonly look at include the following. They are areas to discuss, not promises of how a court will rule.

• Any written agreement about the property, such as a co-ownership agreement, a separation agreement or a will, that deals with how and when it can be sold.
• The history of how the property was bought, who paid what, and what each person expected.
• Whether a spouse or children live in the home, and the effect a sale would have on them, including any Family Law Act issues.
• Whether the applicant is acting in good faith or for an improper purpose.
• Whether a buyout, a delayed sale or another arrangement would meet the applicant's needs without a forced sale.

Practical points for your response

Court papers come with deadlines. Look at the date you were served and any response dates on the documents, and do not let them pass while you are deciding what to do. Missing a step can leave the court hearing only one side.

Your evidence should be organized and factual. Keep your tone measured in anything you write. Messages that attack the other owner can hurt more than they help, and they may be read by a judge.

If a sale does go ahead

If the property is sold, either by agreement or by order, how the sale is carried out and how the proceeds are handled is worth discussing with a lawyer. On the electronic land registry, most transfer of title documents require two different lawyers to sign for completeness, with limited exceptions. A single lawyer may not act for both transferor and transferee, though a firm of two or more lawyers may if different lawyers represent each party.

On the tax side, CRA says all sales of real property must be reported, including a principal residence, even with no gain or a fully exempt gain. Ask an accountant how your share of any gain is treated.

What to do next

• Note the date you were served and every deadline in the court papers.
• Collect the title documents, purchase records, mortgage statements and any written agreements.
• Gather proof of who paid for repairs, taxes, insurance and utilities.
• Write a short timeline of how the co-ownership began and what has happened since.
• Consider whether you could buy out the other owner, and what financing that would require.
• Speak with a lawyer before you respond or negotiate.

Frequently asked questions