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Real Property - Joint Tenancies. Grady v. Grady
In Grady v. Grady (Ont CA, 2023) the Court of Appeal considered a leading case (Hansen) on severing a joint tenancy:[8] The application judge was required to determine the threshold issue of whether, before his death, Michael Grady had severed the joint tenancy in the matrimonial home that he held with his wife, Margaret Grady, who survived him. This was the key contentious issue that prevented the appointment of an executor and the orderly administration of Margaret Grady’s estate. In determining that Michael Grady had not severed the joint tenancy, the application judge properly considered and applied the governing principles set out in Hansen Estate v. Hansen, 2012 ONCA 112, 109 O.R. (3d) 421, particularly that “a testamentary disposition cannot, in itself, sever a joint tenancy”: at para. 63.
[9] The application judge concluded, correctly in our view, that in the circumstances of this case, Michael Grady’s testamentary disposition to leave his entire estate to only Tracey Ann Grady was not sufficient to sever the joint tenancy with Margaret Grady. The onus was on Tracey Ann Grady to provide evidence to demonstrate the severance of the joint tenancy: see Re McKee and National Trust Co. Ltd. et al. (1975), 1975 CanLII 442 (ON CA), 7 O.R. (2d) 614, at p. 620. Contrary to her argument that the third method of severance under Hansen Estate applied, Tracey Ann Grady did not provide evidence of “any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common”: Hansen Estate, at para. 32. . Senthillmohan v. Senthillmohan
In Senthillmohan v. Senthillmohan (Ont CA, 2023) the Court of Appeal considered the execution status of one of two joint-tenant owners of real estate:[8] Because a creditor cannot seize the interest of a non-debtor joint tenant, the appeal must be dismissed.
[9] In our view, the appellant’s position fundamentally misunderstands the law of creditors’ remedies against jointly-held property where only one of the owners guaranteed the debt. Having so concluded it is not necessary to consider the appellants’ arguments about the date of severance.
[10] The appellant relies on authorities which stand for the proposition that each joint tenant holds an undivided interest in the whole of the property: Zeligs v. Janes, 2016 BCCA 280; Royal & SunAlliance Insurance Co. v. Muir, 2011 ONSC 2273, 9 R.P.R. (5th) 104. As Royal & SunAlliance notes at para. 2, each joint tenant “holds everything and yet holds nothing.” The appellant’s argument is that, because joint tenants are essentially one owner until the joint tenancy is severed, a creditor has the right to claim against the full interest. While Royal & SunAlliance does set out the characteristics of joint tenancy – unity of title, unity of interest, unity of possession, and unity of time – it does not support the conclusion that where the debt itself is not jointly held that the entire property is exigible.
[11] While there is little jurisprudential guidance on this discrete question, it is the natural corollary of the generally accepted and commonly cited proposition that an execution creditor can execute against the debtor’s interest in jointly held property. In other words, to accept the appellant’s position would render meaningless the use of the words “the debtor’s interest in”.
[12] Arnold Bros. Transport Ltd. v. Murphy, 2013 MBQB 137, 295 Man. R. (2d) 66, aff’d. 2014 MBCA 9, 303 Man. R. (2d) 140, upon which the appellant relies, does not assist as it interprets the statutory scheme that governs in Manitoba, which differs from the law in Ontario. In Manitoba, s. 136(3) of the Real Property Act, C.C.S.M. c. R30, prescribes the order of payment as follows: 1) expenses occasioned by the sale; 2) payment due or owing to the mortgagee or encumbrancer; 3) payment of subsequent mortgages, encumbrances, or liens, if any, in the order of their priority; with 4) the surplus being paid to the owner or other person entitled. In Manitoba, a writ constitutes a lien on the land and accordingly falls within step 3 above. In this way, writs are paid out before any remaining surplus is paid to joint tenants.
[13] In Ontario, s. 9(1) of the Execution Act, R.S.O. 1990, c. E.24 provides that:9(1) The sheriff to whom a writ of execution against lands is delivered for execution may seize and sell thereunder the lands of the execution debtor, including any lands whereof any other person is seized or possessed in trust for the execution debtor and including any interest of the execution debtor in lands held in joint tenancy. [Emphasis added.] [14] The process of seizure and execution on debts only contemplates the execution against the debtor’s exigible interest in the land held in joint tenancy. For instance, when a sheriff takes sufficient steps to seize property, the joint tenancy is severed and, once severed, the debtor joint tenant has no claim to the whole. So, too, for the creditor, who can now execute against the debtor’s share of the tenancy in common.
[15] Section 10(6) of the Execution Act also provides that a writ “binds the lands against which it is issued”. While this does not expressly state that a writ can effect only a seizure of the debtor’s exigible interest in land held in joint tenancy, it is the natural interpretation of the provision when read in conjunction with s. 9 and the right of survivorship. That is to say, where property is jointly held and one joint tenant dies, the remaining joint tenant acquires the entire interest in the property through their right of survivorship. And, where a writ is filed against jointly held land before the debtor joint tenant’s death, it does not continue to bind the surviving non-debtor’s complete interest in the property acquired through their right of survivorship: Power v. Grace, 1932 CanLII 116 (ON CA), [1932] O.R. 357 (Ont. C.A.). . Gefen Estate v. Gefen
In Gefen Estate v. Gefen (Ont CA, 2022) the Court of Appeal set out the ways of severing a joint tenancy:[101] ... She [the trial judge] described the three ways in which a joint tenancy can be severed as set out in Hansen Estate v. Hansen, 2012 ONCA 112, 288 O.A.C. 116, at para. 34: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. . Inniss v. Blackett
In Inniss v. Blackett (Ont CA, 2022) the Court of Appeal stated basics of joint tenancies regarding the Partition Act:The trial judge did not err in ordering that the house should be sold by virtue of the Partition Act
[23] Joint tenants have a prima facie right to force a sale of a property under s. 2 of the Partition Act: Davis v. Davis, 1953 CanLII 148 (ON CA), [1954] O.R. 23 (C.A.), at p. 29. The onus is on the party resisting the sale of the property to demonstrate that the property should not be sold. To exercise its discretion not to approve a sale, a court must be satisfied that the party seeking the sale is acting in a malicious, vexatious or oppressive fashion: Brienza v. Brienza, 2014 ONSC 6942, at para. 25. . Toronto-Dominion Bank v. Phillips
In Toronto-Dominion Bank v. Phillips (Ont CA, 2014) the Court of Appeal sets out the essential characteristics of joint tenancy ownership of real property, and addresses when it is severed by bankruptcy and execution proceedings:(4) Joint Tenancy
[35] Having said the above, the appellant and the respondent held the real property as joint tenants. The judgment and execution in favour of BMO was also joint. As such, it would be open to BMO to realize the joint debt as against the respondent, as any interest of the respondent was unaffected by the stay. As Perell J. noted in Royal & SunAlliance Insurance Company v. Muir, 2011 ONSC 2273 (CanLII), 2011 ONSC 2273, 9 R.P.R. (5th) 104, at para. 23: “Joint tenants have identical undivided interests in the same property. Each joint tenant holds ‘totum tenet et nihil tenet’ or ‘per mie et per tout’ which means each holds everything and yet holds nothing.”
[36] The characteristics of a joint tenancy are succinctly described in Jeffrey W. Lem and Rosemark Bocska, Halsbury’s Laws of Canada – Real Property, 1st ed. (Markham, Ont.: LexisNexis Canada, 2012), at HRP-37:There are four essential attributes of a joint tenancy, known as the four unities. A joint tenancy requires:
(1) Unity of Interest – the interest of each joint tenant must be equal in nature, extent and duration;
(2) Unity of title – the interests must arise from the same act or instrument;
(3) Unity of Time – the interests must vest at the same time; and
(4) Unity of possession – the interests must relate to the same piece of property.
A joint tenancy depends on the continuance of the unity of interest, title and possession. The unity of time of vesting only applies to the original creation of the tenancy and cannot be affected by any subsequent act. [37] The continuance of a joint tenancy depends on the maintenance of the unities of title, interest and possession; a destruction of any of these unities leads to a severance: Power v. Grace, 1932 CanLII 116 (ON CA), [1932] O.R. 357 (C.A.), at p. 360. Severance of a joint tenancy may occur: through the unilateral action of a joint tenant on his or her own share, such as selling or encumbering it; through a mutual agreement between the co-owners to sever the joint-tenancy; or through any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common: Lem and Bocska, at HRP-41.
[38] Severance also may occur on bankruptcy. This is because the bankrupt’s property vests in the trustee in bankruptcy, and the four unities are therefore not maintained: see Cameron (Re), 2011 ONSC 6471 (CanLII), 2011 ONSC 6471, 108 O.R. (3d) 117, at fn. 9.
[39] Severance by execution is not so straightforward. Lem and Bocska describe such severance, at HRP-42:Seizure of property through lawful execution procedures will sever a joint tenancy. However the mere filing of the writ is insufficient; it must be acted upon. Thus, where the sheriff holds a writ of execution against a joint tenant but does not execute it prior to that tenant’s death, the surviving joint tenant inherits the property free from the execution. [40] The appellant argues that the joint tenancy in the surplus was severed such that BMO could only recover from the respondent’s 50% interest in the surplus. The appellant submits that the joint tenancy was severed in either one of two ways: as a result of BMO’s efforts to collect its debt, or as a consequence of her consumer proposal. She particularly relies on Power, supra and Muir, supra in support of her position.
[41] The respondent counters with the following: there was no severance; the application judge’s determination that the joint tenancy was not severed was a finding of fact; and in any event, the parties’ interests are subject to an accounting and the equities of the case. He relies in part on Arnold Bros. Transport Ltd. v. Murphy, 2013 MBQB 137 (CanLII), 2013 MBQB 137, 34 R.P.R. (5th) 217, and on Sirois v. Breton, 1967 CanLII 193 (ON SC), [1967] 2 O.R. 73 (Co. Ct.) in support of his position.
[42] In Power, this court determined that while advertisement of a sale was sufficient to constitute a seizure that severed a joint tenancy, the mere filing of a writ of execution with the sheriff was insufficient. In Maroukis v. Maroukis, 1984 CanLII 76 (SCC), [1984] 2 S.C.R. 137, at p. 143, the Supreme Court stated that Power “stands for the proposition that, where a writ of fieri facias is delivered to the sheriff covering the interest of one joint tenant in real property and no further steps are taken in the execution process, the death of that joint tenant will pass the whole estate to the survivor free of execution.”
[43] In Muir, Perell J. concluded that the execution creditor took sufficient steps to execute the judgment, severing the joint tenancy. The steps included advertising the sale of property by the sheriff. Perell J. stated, at para. 26:Severance may occur when an execution creditor takes sufficient steps to execute the judgment against the debtor’s interest in the property, although the filing of the writ of execution does not by itself result in a severance. [44] The decision of Sirois, relied upon by the respondent, also determined that the mere filing or delivery of a writ to the sheriff was insufficient to effect a severance of a joint tenancy. This is of little assistance on this appeal. Similarly, Arnold Bros. is a very different case. The key issues were whether the sale of property by a mortgagee or property division negotiations between separated spouses served to sever the joint tenancy. Neither was found to sever the joint tenancy, and the creditor, who held an execution in the name of only one of the joint tenants, was entitled to be paid from the pool of funds prior to any distribution to the joint tenants.
[45] The facts in the case under appeal are quite different and indeed, rather unusual. Here, there could be no execution against the appellant because execution against her was stayed. However, the debt was joint, and BMO therefore was at liberty to recover its debt against the respondent. The parties to the application and BMO appeared before the application judge and made submissions. The parties consented to, and the application judge granted, an order authorizing payment to BMO. The execution was completed and acted upon. In my view, in these circumstances, the joint tenancy was severed, and the payment to BMO could only be from the respondent’s 50% share of the surplus.
[46] I am also not persuaded of the respondent’s other submissions. In my view, the application judge erred in law in ignoring the stay and in not finding a severance of the joint tenancy. Furthermore, in the face of a proposal, it is not open to the court to effect ostensible equitable readjustments to the allocation of the funds in issue. Lastly, I note that in oral argument, counsel for the appellant acknowledged that the respondent could seek redress under the provisions of the BIA however, I do not propose to address that potential eventuality.
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