The Court of Appeal for Ontario in Ross v. Luypaert 2025 ONCA 236 stated that a co-owner of a jointly owned property located may bring an application for a partition or sale under Section 3 of the Partition Act (Ontario) (Act).
Mr. and Mrs. Ross own two properties: 1) with their son Rene Luypaert a rental unit in Galt, and 2) a home occupied by the son in Bristol which was registered soley in their own names,
Their litigation guardians, namely the daughters asked to Court:
- To order the sale of the Galt property,
- To grant them possession of the Bristol property.
The funds were required for the care of Mr. and Mrs. Ross.
The Partition Act permits any person with a legal or an equitable interest in land in Ontario, including joint tenants and mortgagees, to apply for partition or sale of all or part of the land if the court considers partition or sale to be the best solution to the parties’ problems.
The onus is on the opposing party to demonstrate that a partition or sale should not be granted by reason of the applicant’s conduct being malicious, vexatious or oppressive.
The Court of Appeal found that the application judge did not err in ordering the sale of the Galt Property and possession of the Bristol Property.
For the Galt Property, Mr. Luypaert did not establish that the litigation guardians’ conduct was malicious, vexatious or oppressive—despite his assertions otherwise.
Luypaert was not able to prove beneficial ownership of the property without evidence establishing the existence of a bare trust arrangement between himself and Mr. and Mrs. Ross.
There was no such document concerning the Bristol property
Comment
Ross v. Luypaert case clearly demonstrates that “paperwork” will be required. Don’t just leave it to one’s imagination. Prove it!
Brian Madigan LL.B., Broker