How to Sever a Joint Tenancy in Ontario Before Death

If you co-own a home or other land and want your share to pass through your estate, you may need to end survivorship. That is called severing the joint tenancy. The reasons are often family ones, such as a separation, a blended family, or a changed relationship with a co-owner.

This article covers the main statutory routes in Ontario, the limits that apply to a matrimonial home, and the risks. Severance can be done wrongly or in a way that is challenged, so it is worth confirming your facts with a lawyer.

Why severing matters

Survivorship overrides a will. A deceased joint tenant's interest goes to the surviving joint tenant or tenants, not to the beneficiaries named in the will. The property passes outside the estate.

A tenant in common is different. A tenant in common's share does not pass by survivorship, and the Land Titles Act provides separately for entering the representatives of a deceased tenant in common. Whether your own co-ownership carries survivorship depends on how title is held, so it is worth confirming that with a lawyer before you act.

First, check whether you are a joint tenant

Many co-owners are not joint tenants. Land given to two or more people is presumed to be held as tenants in common unless the document shows on its face that they take as joint tenants. The presumption also applies where co-owners are spouses, including unmarried partners living together in a conjugal relationship. People who acquire land by length of possession also hold as tenants in common.

The presumption does not apply to land granted to executors or trustees. A parcel register shows the registered owners, and it can be searched through OnLand. ServiceOntario cannot search or explain the records for you.

Statutory ways to sever

A person may convey property to themselves in the same way they could convey it to another person. Two or more owners may also convey property vested in them to one or more of themselves. These are the statutory routes a joint tenant can use to sever by deed.

Separately, co-owners can end up before a court over the land itself, and how that affects a joint tenancy depends on the facts, so it is worth confirming with a lawyer. Any joint tenant or tenant in common may be compelled to make or suffer partition or sale of the land. Any person interested may apply to the court for partition, or for sale if the court considers sale more advantageous.

A conveyance among owners is liable to be set aside if a fiduciary relationship or another factor prevents it. Whether any other way of ending a joint tenancy applies depends on the facts, so it is worth confirming with a lawyer rather than assuming.

Limits and risks

• Set-aside risk: a conveyance among the owners is liable to be set aside if a fiduciary relationship or another factor prevents it.
• Matrimonial home: a spouse may not sell, mortgage or otherwise dispose of an interest in a matrimonial home unless the other spouse joins in or consents, a separation agreement releases the right, a court order authorizes it, or a valid designation of another home applies. A matrimonial home is property ordinarily occupied by the spouses as their family residence, now or at separation.
• Co-owner is a child: if a spouse dies owning a matrimonial home as joint tenant with a third person and not the other spouse, the tenancy is deemed severed just before death and the share goes to the estate.
• Partition: a court application can force a sale of the land, which may not be what you want.
• Simultaneous deaths: unless a contrary intention appears, joint tenants who all die at the same time or where survivorship is uncertain are each deemed to have held as tenants in common.

What to do next

• Get a parcel register through OnLand to see exactly how title is held.
• Find out whether the property is, or was at separation, a matrimonial home.
• Think about the other owner's likely reaction, since a deed among owners can be challenged.
• Review your will and beneficiary plans so the severed share goes where you intend.
• Speak with a lawyer before signing or registering anything.

Frequently asked questions