SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 124/15
DATE: 20150821
RE: The Estate of Edward Raymore Post by its Estate Trustee,
Brian Thomas Alfred Post, Applicant
AND:
Heather Ann Hamilton, Respondent
BEFORE: MacDougall, J.
COUNSEL: Robert G. Hiseler Counsel, for the Applicant
HEARD: July 31, 2015
reasons on application
[1] Edward Post and Heather Hamilton were involved in a common law relationship in 1979 and purchased a home, (the “subject property”) in 1980 in both their names as joint tenants. Their relationship soon deteriorated and Heather moved out of the subject property in 1983 and has never been heard from since. Edward and Heather had never married.
[2] Since 1983, Edward Post continued to live in the subject property and paid all of the carrying and maintenance costs for the property until his death in December 2014. Edward died without a will.
[3] Edward’s Estate wished to sell the subject property and all members of his family had understood that the property was in Edward’s name alone but discovered that the title remained in Edward and Heather’s name as joint tenants.
[4] Edward’s estate has attempted to locate Heather without success and now brings this Application seeking an order to dispense with service on Heather and an order vesting title in the subject property in the name of Edward’s Estate as well as other alternative relief.
[5] On July 31, 2015, I issued an Order granting the order sought with reasons to follow. These are the reasons for the Order.
The Order to Dispense with Service
[6] I am satisfied that all reasonable steps have been taken to locate the Respondent Heather Hamilton and to personally serve her. The Applicant’s material discloses that efforts to locate the Respondent included:
[7] Strenuous efforts have been undertaken by the Estate via its Trustee and family members of Ted. Such efforts have included:
(i) Posting adds to locate Heather via social media, via advertising on www.facebook.com and www.kijiji.com;
(ii) Performing a skip trace search with the Corpa Group;
(iii) Consulting with the office of Vital Statistics;
(iv) Advertising in the Canadian Gazette; and
(v) Consulting with the Ontario Provincial Police.
The Vesting Order
[8] In these circumstances, the issue can be simply stated as to whether one joint tenant can acquire full title to property by way of adverse possession?
[9] To establish title by possession, a party must show:
(i) Actual possession for the statutory period by him/herself and those through whom s/he claims;
(ii) That such possession was with the intention of excluding from possession the owner or person entitled to possession; and
(iii) Discontinuance of possession for the statutory period by the owners and all others, if any, entitled to possession.
See: Keefer v Arillotta (1976), 1976 571 (ON CA), 13 O.R. (2d) 680 at p. 691 (Ont. C.A.) and Re: St. Clair Beach Estates Ltd. v. MacDonald et al. (1974), 1974 564 (ON SC), 5 O.R. (2d) 482.
[10] As a matter of common law, unity of possession was an essential requirement of a joint tenancy so that the possession of one joint tenant was the possession of all and as a result one joint tenant could not claim title by adverse possession against another. This however has been changed by statute. Section 11 of the Real Property Limitations Act R.S.O. 1990 c. L.15 provides that the possession by one joint tenant or tenant in common is not deemed the possession of others.
- Where any one or more of several persons entitled to any land or rent as coparceners, joint tenants or tenants in common has or have been in possession or receipt of the entirety, or more than his or their undivided share or shares of the land, or of the profits thereof, or of the rent for his or their own benefit, or for the benefit of any person or persons other than the person or persons entitled to the other share or shares of the same land or rent, such possession or receipt shall not be deemed to have been the possession or receipt of, or by the last-mentioned person or persons or any of them.
[11] In this case, criteria (i) and (iii) have been satisfactorily demonstrated. There is no doubt that Edward had actual possession of the subject property by himself for a period of 32 years, well beyond the statutory period required.
[12] The remaining issue is whether Edward’s Estate can demonstrate that Edward’s possession of 32 years was accompanied by the requisite intention to exclude Heather.
[13] In this case, there does not seem to be a clear and direct intention by Edward to exclude Heather. But absent a direct intention, can the court still find in favour of adverse possession by a inferring a presumed intention? In this case, my answer is, yes.
[14] The facts support the idea that Edward believed he had full ownership of the house: he and Heather were not spouses; he paid all the expenses without any contribution from Heather for the 32 years, either financial or otherwise; he made all the mortgage payments and renewed the mortgage over the years without Heather’s signature or agreement; and, the Municipal Property Assessment Corporation’s records showed Edward as the sole owner of the property.
[15] The facts of this case are similar to the facts in Re: Pichette, 1997 CarswellNB (New Brunswick Court of Queen’s Bench) where the co-owners were also not in a marital relationship.
[16] I find that the Applicant, Edward’s Estate has satisfied its onus of demonstrating that the facts establish Edward’s intention to exercise possession of the subject property with the intention to exclude the co-owner, Heather and therefore a vesting order will issue declaring the Applicant as legal and beneficial owner of the subject property.
MacDougall, J.
Date: August 21, 2015