Gruber v. Glickman Estate, 2025 ONSC 258

Court File No.: CV-22-00688556-00ES
Date: 2025-01-13
Court: Superior Court of Justice – Ontario

Parties

In the matter of the Estate of Anne Glickman, deceased

Applicant:
David Gruber

Respondents:
The Estate of Yaacov Glickman, Sheldon Recht (a.k.a. Shlomo Recht), Clare Recht, The Wolfish Glickman Charitable Foundation, Eyal Danieli, Deniella Shidlofsky (a.k.a. Deniella Shidlovski), Shai Buchwald, Faya Buchwald (a.k.a. Feya Buchwald), Estes Recht (a.k.a. Estee Recht), Michal Pink Recht (a.k.a. Michal Pink), Ari Recht, Lee Recht, Yael Litvak, Hagar Shpaisman (a.k.a. Hagay Shpaisman), Rachel Langfeld (a.k.a. Racheli Langfeld), Tamar Litvak, Hindy Levy, Shane Levy, Bella Danieli, Eyal Locker-Biletzki, Ili Locker Biletzki (a.k.a. Illy Locker-Biletzki), Daniel Danieli (a.k.a. Daniel Tofler), Ben Ishai Danieli (a.k.a. Ben Yishai Danieli), Camille Danieli, Priel Danieli (a minor by his/her Litigation Guardian, the Children’s Lawyer), Allin Danieli (a minor by his/her Litigation Guardian, the Children’s Lawyer), and Camilla Tancer

Before: C. Gilmore

Counsel:

• Robert Levesque, Counsel for the Applicant (Responding Party)
• Benjamin Arkin and Alexandra Cuperfain, Counsel for the Respondents (Moving Party)

Heard: 2025-01-10

Endorsement on Motion

Introduction

[1] This is a motion brought by the Respondent, Moshe Gruber (“Mr. Gruber” or “the Estate Trustee” or “the Jacob Estate”) who is the Estate Trustee of the Estate of the late Yaacov Glickman (“the deceased” or “Jacob”).

[2] The Jacob Estate requests an Order declaring that it is the sole beneficial and legal owner of one common share of 574487 Ontario Inc. (“the Corporation”) registered to Jacob and Anne Glickman (“the Common Share Certificate” or “the share”). The question to be determined is one of pure law on which the parties seek the Court’s direction. No costs are sought on the motion.

[3] For the reasons set out below, I find that Jacob and Anne held their share in the Corporation as well as the common shares in Warwick jointly and that Anne’s share passed to Jacob by way of survivorship upon Anne’s death. Accordingly, the Jacob Estate is the sole beneficial and legal owner of the shares.

Background

[4] The facts in this matter are not in dispute.

[5] Anne and Jacob Glickman were spouses. Anne died on December 4, 2021. Jacob died on June 10, 2022. They had no children. They lived apart for decades but maintained a close relationship and did not divorce.

[6] The Applicant David Gruber is the Estate Trustee for Anne’s Estate (“the Anne Estate”).

[7] Anne and Jacob owned one share in the Corporation and two hundred common shares of 15 Warwick Co-operative Housing Inc. (collectively “the shares”). The Corporation owns title to 15 Warwick Avenue (“Warwick”) which is a housing co-operative in Toronto. Title to cooperative housing units at Warwick are held by way of a share in the Corporation rather than holding title directly. Anne’s Will leaves Jacob her interest in Warwick along with other gifts.

[8] The sole question on this motion is whether the shares were owned by Anne and Jacob jointly or as tenants in common.

[9] The share certificate issued on February 11, 2000 sets out that the registered owners of the share are “Jacob & Anne Glickman”. As such Anne and Jacob’s share in the Corporation gave them ownership and exclusive use of Suite 3 and the parking space P-3 at 15 Warwick.

[10] Jacob and Anne also signed an Occupancy Agreement, a Pledge Agreement and a Shareholders’ Agreement on February 11, 2000. In each of those Agreements, they are simply noted as Jacob & Anne Glickman or their names appear one above the other for signature. There is no indication in either the share certificate or any of the abovementioned agreements as to whether the interest purchased was joint or each as to a 50% interest nor is there any evidence of what contributions were made by either or both of them.

[11] The position of the Jacob Estate is that Anne’s shares passed to Jacob by right of survivorship on Anne’s death. As such, the Jacob Estate has asked the Anne Estate to transfer Anne’s shares to his Estate. The Anne Estate is not specifically opposed to this request but requests that the Court consider the applicable law and determine the issue.

[12] Anne left a Will in which she made specific bequests to 28 different beneficiaries who were both friends and relatives. This left little residue available to pay Estate debts and liabilities. There are concerns about whether Anne paid the required tax on her mother’s Estate or tax on the income from rental units she inherited from her mother.

[13] The Anne Estate seeks to gather in all assets of her Estate in order to determine if an abatement will be required to pay Estate debts. As such, the Anne Estate requires clarity on whether it has no interest in the shares or whether her Estate owns a 50% interest in those shares.

The Issues

Section 14(a) of the Family Law Act

[14] The Jacob Estate argues that Section 14(a) of the Family Law Act, RSO 1990, c F.3 (“the FLA”) is determinative of the issue in this motion.

That section of the FLA sets out as follows:

14 The rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses, as if they were not married, except that,

(a) the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants;

[15] This section stipulates that the presumption of resulting trust applies between married spouses, unless they hold property as joint tenants. If spouses own property as joint tenants they will be entitled to the right of survivorship and any party challenging the ownership has the burden of rebutting the presumption in favour of joint tenancy.

[16] While Anne and Jacob were living separately at the time of the death, the issue is their intention at the time of purchase of the share and not their living arrangement. If there is no evidence one way or the other, intention must be inferred from the circumstances (see McManus v. Argiro, 2021 ONSC 6385 at para 12).

[17] Often there are disputes relating to individuals owning property as joint tenants where one party has contributed the entire or the majority of the purchase price. In this case, there is no evidence of who was the source of funds for the purchase of the shares. There is also no evidence that either party attempted to alter or sever the joint tenancy. As such, the Jacob Estate argues that the presumption is that property owned by spouses together will pass to the surviving spouse unless there is evidence of any contrary intention.

[18] As well, there is other circumstantial evidence of Anne’s intentions. In her Will she leaves her interest in the shares to Jacob. She does not specify what that interest is (whether 100% or 50%) but there is clearly an intention that Jacob should have the shares on her death.

[19] The Anne Estate submits that the presumption of joint tenancy applies only to property where title is registered to spouses as joint tenants. In this case the spouses bought the shares without specifying whether their respective interests were held as joint tenants or tenants in common. Without an indication of how the interest in the shares was to be held, the Anne Estate argues that section 14 of the FLA may not be determinative and other rules or presumptions apply.

Common Law and Equitable Presumptions and Section 13 of the Conveyancing and Law of Property Act

[20] In Hardy v. Estate of Louise Winters Hardy, 2022 ONSC 1966 the Court summarized the evidentiary presumptions that apply when two or more people buy property without specifying how their interests are held.

[21] At paragraph 13 of Hardy, Justice Leach set out the following:

a. Through long-standing principles of common-law, when real property or personal property was granted to two or more persons with no words of severance, the persons were considered joint tenants, with a right of survivorship in relation to the property.

b. However, it was also well established that the Courts of Equity did not favour joint tenancy; e.g., because the entire property subject to such a joint tenancy at common law would belong to the survivor, and the representatives of the deceased would receive nothing. Such an outcome was not viewed as fair or "equitable", except—possibly—from the standpoint of pure chance determining which owner would take by right of survivorship.

c. Equity therefore always leaned in favour of tenancy in common, rather than joint tenancy, and over time developed a rule of construction that effectively reversed the common law presumption in such cases. In particular, when real or personal property was granted to two or more persons, in the absence of an express declaration as to the beneficial interest, Courts of Equity would treat the persons as tenants-common of the beneficial interest, and any party entitled to the whole estate by right of survivorship at common law was required to hold the deceased owner's erstwhile share of the property in trust for the representatives of the deceased. The practical result was a presumption of tenancy in common, rather than a joint tenancy, in the case of any grant to two or more persons without an express indication that they were to receive title as joint tenants.

d. In time, legislatures embraced the rule of construction developed by the courts of equity. Here in Ontario, that embrace and restatement currently takes the form of subsection 13(1) of the Conveyancing and Law of Property Act.

[22] Section 13(1) and (2) of (“the CLPA”) sets out as follows:

Effect of grants, devises, etc., to two or more

13 (1) Where by any letters patent, assurance or will, made and executed after the 1st day of July, 1834, land has been or is granted, conveyed or devised to two or more persons, other than executors or trustees, in fee simple or for any less estate, it shall be considered that such persons took or take as tenants in common and not as joint tenants, unless an intention sufficiently appears on the face of the letters patent, assurance or will, that they are to take as joint tenants. R.S.O. 1990, c. C.34, s. 13 (1).

Spouse

(2) This section applies notwithstanding that one of such persons is the spouse of another of them. R.S.O. 1990, c. C.34, s. 13 (2); 1999, c. 6, s. 13 (1); 2005, c. 5, s. 13 (1).

[23] The Jacob Estate submits that section 13 of the CLPA cannot take primacy over section 14 of the FLA or the presumption that spouses hold property as joint tenants would always be rebutted by the CLPA.

[24] Further, there is a dearth of case law considering the interplay between the CLPA and the FLA. However, importantly, the CLPA deals only with a presumption of tenancy in common with respect to real property. The Co-operative Corporations Act, RSO 1990, c C.35 (“the CCA”) explicitly states at section 42 that the shares of a co-operative are personal property.

[25] The Anne Estate argues that the statutory presumption of a tenancy in common will apply to the shares if they can be classified as land for the purposes of the CLPA. While the Anne Estate concedes that the shares may not be “land” for the purposes of s.13(1) of the CLPA, the term “land” is broadly defined in the CLPA including rights connected to land.

[26] The Anne Estate relies on Regina v. LaBelle with respect to the Ontario Court of Appeal’s view of the definition of land in the CLPA as follows:

“Land” is a broad expression covering a wide variety of aspects of the soil and rights arising from above, below and deriving from the produce of the soil. By the Conveyancing and Law of Property Act, R.S.O. 1960, c. 66, s. 1(b), ‘land’ includes messuages, tenements, hereditaments, whether corporeal or incorporeal, and any undivided share in land”. Cf. Jowitt, Dictionary of English Law (1959), p. 903, where it is stated:

The two kinds of hereditaments were corporeal, i.e., tangible (meaning the same thing as land), and incorporeal, i.e., not tangible (meaning the rights and profits annexed to, or issuing out of, land). The word included money held in trust to be laid out in land (Re Gosselin [1906] 1 Ch. 120).

The term included a few rights unconnected with land, but it was generally used as the widest expression for real property of all kinds, and was therefore employed in conveyances after the words "lands" and "tenements" to include everything of the nature of realty which they did not cover."

[27] The Anne Estate submits that it is arguable that “rights arising from the land” would include Anne and Jacob’s interest in the Corporation’s share because the combined effect of the Agreements they signed gave them rights to occupy the land owned by the Corporation. The corollary is that s.13(1) of the CLPA applies and Anne and Jacob are presumed to own their interest in the shares as tenants in common. The Anne Estate concedes there are no Ontario cases which have considered s.13(1) of the CLPA with respect to an interest in a co-operative housing building.

[28] The Anne Estate further argues that if s.13(1) of the CLPA does not apply then this Court must consider whether the common law presumption of joint tenancy or the equitable presumption of tenancy in common applies.

[29] Counsel concede that the equitable presumption of tenancy in common applies in only three scenarios as per Snell’s Equity, 29th ed., 1990, at p.36:

(a) cases where the parties contribute the purchase monies for the property in unequal shares;
(b) cases where the property is a mortgage and the co-owners are the mortgagees;
(c) cases where the parties are business partners.

[30] Counsel also concede that none of the above scenarios apply as there is no evidence of what the respective contributions of the parties was and (b) and (c) clearly do not apply.

Analysis and Ruling

[31] The Anne Estate asks this Court to expand the definition of “land” in the CLPA to include the shares as a corporeal hereditament attaching to the subject land. Such an expansion of the definition is neither realistic nor warranted for two reasons. First, the shares in the co-operative are specifically defined in the CCA as being personal property and second, attempting to equate a shareholding interest to an easement, lease agreement or other corporeal hereditament which actually attaches to land is not contemplated by the CLPA nor the Ontario Business Corporations Act, RSO 1990, c B.16 or similar corporate statutes in Ontario. Such an expansion of the meaning of “land” in the CLPA would lead to significant confusion and, in this Court’s view, was not intended by LaBelle.

[32] Counsel concede that the equitable presumption of tenancy in common does not apply. As per my findings above, the definition of “land” in the CLPA cannot be expanded to apply to shares in a co-operative housing unit.

[33] That leaves the common law presumption of joint tenancy. I find that this presumption applies which would mean that the share was jointly owned by Anne and Jacob. As the share is jointly owned, the presumptions in s.14 of the FLA will apply. If there is any doubt concerning this finding, there is sufficient evidence, in this Court’s view to rebut any presumption of resulting trust as follows:

a. While there is no direct evidence of an intention to take the shares as joint tenants there is also no evidence to the contrary. For example, in her Will Anne does not say that she gifts 50% of her interest in Warwick to Jacob. The Will simply states that she bequeaths him “all of her interest” in Warwick.

b. There is no evidence that either party made any effort to divide or sever their interests.

c. None of the agreements nor the share certificate for the Corporation indicate a specific interest for either party.

d. No evidence is available as to either party’s contribution to the purchase price of the share of the Corporation.

e. The parties were spouses and not divorced.

f. Neither equitable presumptions nor the CLPA apply to this fact scenario.

[34] Given all of the above, I find that Jacob and Anne owned their share in the Corporation and the 200 common shares in the Warwick Housing Co-operative jointly and Anne’s shares passed to Jacob by way of survivorship upon Anne’s death.

[35] The draft Order provided has been signed and is attached.

C. Gilmore
Date: January 13, 2025