BY VALERIE DYE
Jointly held real estate property is convenient for the reason that it has the right of survivorship which means that if one owner dies the other owner becomes the sole owner of the property. It is for this reason that jointly owned real estate is more common among married couples in relation to their matrimonial homes.
It is not unusual for marriages to go sour. When this happens one spouse may not wish the other spouse to inherit the entire property upon his or her death. In such cases the spouse will need to sever the joint tenancy and change ownership of the home from jointly owned to ownership as tenants in common. Obviously, one spouse may not necessarily consent to the other spouse severing the joint tenancy. Can one spouse sever the joint tenancy in the matrimonial home without the consent of the other spouse or without a court order? The provisions of the Family Law Act suggest that without such consent or court order there can be no severing of the joint tenancy. Section 21 of the Family Law Act provides as follows:
No spouse shall dispose of or encumber an interest in the matrimonial home unless:The other spouse joins in the instrument or consents to the transaction; The other spouse has released all rights …. by a separation agreement; A court order has authorised the transaction or has released the property from application under this part, or the property is not designated by both spouses as a matrimonial home.
In light of this provision would a conveyance by one spouse of one half of the property from himself as joint tenant back to himself as a tenant in common be considered the ‘disposal’ of an interest in the matrimonial home? This question was answered in the Ontario Court of Appeal case of Re Horne and Evans (1987 O.J No. 495). In that case the husband owned a home jointly with his wife. He wanted to leave half of the property to his daughter from a previous marriage after he died. He transferred his interest in the property to himself thereby severing the joint tenancy and creating a tenancy in common with his wife. This allowed him to leave his half share of his property for his daughter in his will. After the husband’s death the wife challenged the transfer stating that he ‘disposed’ of his interest in the property without her permission. In its decision the Court of Appeal held that a conveyance by one joint owner to himself as tenant in common does not dispose of an interest, since the same two parties continue to own the property, but in a different manner. The only thing that changes is that the survivor does not have an automatic right to own the entire property upon the death of the other owner. The Court further stated that it was not the intention of the legislation to dictate the manner in which spouses should own their matrimonial home.
The case of Horne and Evans has been cited in subsequent cases thereby establishing the principle that one joint owner can transfer his share of the property to himself as a tenant in common so as to sever the joint tenancy.
It would seem, however, that, at least in the case of the matrimonial home, transfer of one’s interest in a jointly held property to a third party is not permissible as this will result in a change of ownership.
Shawn Stockman
March 24, 2020 at 3:39 am
I have recently become the victim of a secret severance, after sharing our lives and the property together for over 15 years.
My partner died this past January and I was shocked when mere days after her death her eldest son called alleging that he and his younger brother now owne “50%of that house“. I responded that I didn’t think that was the case as when his mother and I purchased the house we had both discussed the desire to not leave the other with the possibility of having to have the others offspring as a partner. I went through multiple health issues with never a thought of betraying the signed agreement i had committed to with her.
In 2016 she was diagnosed with Cancer and i carried out all the duties of primary caregiver ( injections, medical dressing changes , assistant, meal preparation, housekeeper etc) from then until her death. I was the power of attorney for her personal care while she was in hospice as well. I gave all that was required to assist her whenever she needed me in the last years of her life.
I therefore was quite surprised when a month or so after her death I went to a lawyer to simply update the title. The lawyer upon preparing the transfer found that approximately 10 months before her death she had secretly transferred her interest (50%) from herself to herself therefore leaving her interest to her two sons and forcing me into a partnership with two people I would never otherwise consider partnering with.. She would have been under the influence of strong narcotics at the time of this act of betrayal, and continued to take advantage of my love and care, and caregiving without so much as saying a word about the betrayal of our original agreement. It should also be noted that the sons that now seem to feel so entitled to interest in our house assisted very very little during the period of her illness and attended our home typically only for Christmas, Thanksgiving and their birthdays – never ever an offer of assistance to me as far as caregiving needs. I feel this severance is not justifiable and even if is deemed to qualify the interest they receive should be far less since they seemed quite content to leave all the work of keeping their mother comfortable and safe, healthy, fed, and looked after for me to tend to.
They both lived local enough to assist but clearly had better things to do.
Please advise if there is a chance to dispute the severance and or seek a larger percentage based on the inequality of burden sharing.
It should be noted that I gladly performed the caregiver tasks Out of my love for her and as expressed by her final words of love to me, but I think I was clearly used by her and her sons.
Brian Fairman
August 11, 2020 at 4:26 pm
I can’t beleive that Ontario Law is getting involved in joint tenancy agreements! Serve yourself a deed and it automatically changes a joint tenancy contract! “COCAINE is a wonderful drug” You are getting a very bad shake in this case if it’s all authentic!…I have something very similar happening with me and I am just finding out about this new law. Lawyers and Judges should stay out of the real world when it comes to making decisions! Just look at the politicians we’ve had!They should play their court games behind locked doors!…That new law shouldn’t have been implemented. It doesn’t cover the majority of cases that joint tenancy makes sense! I feel for you!