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In this case, the court addressed the Applicant’s motion for a partial summary judgment granting an order for the sale of the parties’ jointly owned property. The court also addressed the Applicant’s request for an order scheduling this matter for an uncontested trial.


The Applicant and Respondent began cohabitating in or around May 1, 2007. They are not married. The party’s brought the property in dispute as joint tenants with the Respondent’s inheritance in 2007. Since then, the value of the property has increased significantly. The parties separated on August 17, 2012.

The Applicant claims she has legal joint ownership pursuant to her status as a registered title holder as a joint tenant with the Respondent. The Respondent claims that the Applicant’s ownership status is as a trustee under a resulting trust, and that she holds her prima facie joint tenancy interest in trust for him. As such, the Respondent claims he owns 100% of the property and the Applicant has no standing to compel its sale under the Partition Act.


  1. Does the Respondent’s claim of a resulting trust raise a genuine issue requiring a trial?
  2. Is the Respondent’s claim of a resulting trust barred from proceeding by operation of the Real Property Limitations Act?
  3. Would a sale of the property be oppressive?


The court reviewed the Supreme Court’s decision of Hyriniak v Maudlin in which the court stated that a trial will not be required when the summary judgment process allows the judge to make the necessary findings of fact, to apply the law to the facts, and if summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result.

The court reviewed the evidence in this case and found it is undisputed the property was purchased when the Applicant was pregnant. The party’s purchased the property as joint tenants after looking at other properties together. The court thus found it was a reasonable inference that the property was bought with a view to it being the family home, and it remained the family home throughout 2007 to 2012.

The court found that the Respondent’s claim that the Applicant did not contribute financially to the costs of the property was without merit. The party’s co-applied for 3 lines of credit secured against the property. As such, the court found the Applicant did contribute to the costs of the property as she remains liable today for the outstanding lines of credit. The Respondent also failed to provide an explanation as to why the property was bought in both party’s names as joint tenants if his intention was for the Applicant to be a trustee only.

Further, the court found that the Respondent knew the Applicant was a joint tenant as such, he could have exercised his right to request a partition and sale of the property as part of a request for division of assets. He did not raise his claim of resulting trust as part of that process. As more than 10 years passed since the date of separation, the court held the Respondent’s claim of a resulting trust was barred from proceeding under the Real Property Limitations Act.

Finally, the court found that any potential prejudice to the Respondent resulting from the sale of the property would be mitigated by requiring the proceeds to be held in trust, subject to a release of $50,000 to each party as this would ensure the Respondent has funds to secure alternative accommodations pending a determination of the remaining issues.


The court held that the Applicant has a prima facie right to the sale of the property under the Partition Act, and that the Respondent’s claim of a resulting trust to defeat that right is time barred having been brought more than 10 years after the date of separation. The court further held the sale would not be oppressive to the Respondent as the order made permits each party to receive $50,000 from the net sale proceeds.

The court noted that granting partial summary judgment should be rare, but this case was one of the rare cases. The issue of sale of the property was severable from the remaining issues, and as such, the court granted the Applicant’s motion for partial summary judgment.