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In her decision in the matter of Ladhodynskyj v. Ferenc, Justice Macdonald of the Ontario Superior Court ordered the partition and sale of the disputed property despite the failing health of one of the three joint owners.

In this case, the property was jointly owned the husband, the wife and the wife’s 86 year old mother. The husband and wife had separated several years ago however, continued to live separate and apart in the jointly held home along with the wife’s mother. The husband eventually brought an application for the partition and sale of the home pursuant to the Partition Act.Under section two of the Partition Act, persons who jointly hold title to property may be compelled to make or suffer partition or sale of the land, or any part thereof. Therefore, joint owners have a prima facie right to partition and sale nonetheless, the Court has jurisdiction to refuse such an order. In particular, the Court has discretion to refuse partition and sale where there has been malicious, vexatious or oppressive conduct by the party seeking an order to partition.

The wife’s mother contested the husband’s application on the grounds that the parties had verbally agreed that she would not be compelled to move out of the home during her lifetime. Justice Macdonald found no evidence of any such agreement and further required that any agreements with respect to interests in land be committed to writing. The wife’s mother’s declining health was also noted as a possible bar to the partition and sale. Nonetheless, Justice Macdonald recognized the considerable tension in the home since the separation and accepted that the economic positions of the parties warranted the sale of the property.

Proceeds from the sale of the property were ordered to be paid into court until the manner in which the funds were to be distributed was determined by the parties or by court order.

In all, this decision confirms that judicial discretion is minimally exercised to interfere with one’s right to the partition and sale of property. Even when one party is suffering from poor health, the immediate financial needs of the parties is often given more weight.