Hansen Estate v. Hansen, 2012 ONCA 112

• Judge: Winkler, C.J.O., Doherty and Goudge, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 22, 2012
• Jurisdiction: Ontario
• Citations: 2012 ONCA 112;(2012), 288 O.A.C. 116 (CA)

Hansen Estate v. Hansen (2012), 288 O.A.C. 116 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. FE.025

Gitte Kok and Susan Leckie, Estate Trustees for the Estate of Willy Hansen, deceased (applicants/appellants) and Barbara Lorraine Hansen (respondent/respondent)

(C53954; 2012 ONCA 112)

Indexed As: Hansen Estate v. Hansen

Ontario Court of Appeal

Winkler, C.J.O., Doherty and Goudge, JJ.A.

February 22, 2012.

Summary:

Spouses in the process of separating and dividing matrimonial property held title to the matrimonial home as joint tenants. The husband died during that process. The wife claimed exclusive ownership of the home through the right of survivorship. The husband's two daughters from a previous marriage, as trustees of the husband's estate, applied for a declaration that the husband's estate was entitled to an undivided one-half interest in the home on the ground that there was a "course of dealing" sufficient to establish a mutual intention to treat the joint tenancy as severed, resulting in the spouses holding title as tenants in common.

The Ontario Superior Court dismissed the application on the ground that the joint tenancy had not been severed by a "course of dealing". The daughters appealed.

The Ontario Court of Appeal allowed the appeal. There was a "course of dealing" sufficient to establish that the spouses mutually treated their interests in the property as changing from joint tenancy to a tenancy in common. Accordingly, the husband's estate was entitled to an undivided one-half interest in the matrimonial home.

Real Property - Topic 3886

Joint estates - Severance of joint tenancies - Mutual acts which result in severance - Elderly spouses separated after a lengthy marriage - The wife moved into a senior's apartment under a one year lease - The husband remained in the matrimonial home owned by the spouses as joint tenants - He changed the locks - The wife transferred the utility bill from her name to his and obtained a fair market value appraisal - Both spouses retained lawyers to negotiate a separation agreement to equally divide marital property - The wife wanted the husband to purchase her interest in the matrimonial home or else have the home sold - Their two joint bank accounts were closed and each opened separate accounts - Both had their lawyers prepare financial statements - The husband died during this negotiation process - The wife claimed exclusive ownership of the home through the right of survivorship - The husband's two daughters from a previous marriage, as trustees of the husband's estate, applied for a declaration that the husband's estate was entitled to an undivided one-half interest in the home on the ground that there was a "course of dealing" sufficient to establish a mutual intention to treat the joint tenancy as severed, resulting in the spouses holding title as tenants in common - The Ontario Court of Appeal held that the trial judge erred in failing to find a sufficient course of dealing between the spouses to sever the joint tenancy - The husband's estate and the wife each held an undivided one-half interest in the home as tenants in common - On the evidence as a whole, the "course of dealing" between the spouses demonstrated a mutual intention to sever the joint tenancy.

Real Property - Topic 3886

Joint estates - Severance of joint tenancies - Mutual acts which result in severance - One manner of severing a joint tenancy was by "any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common" - The Ontario Court of Appeal held that the "course of dealing" test was not a form of estoppel requiring evidence of detrimental reliance - See paragraphs 45 to 51.

Cases Noticed:

Williams v. Hensman (181), 70 E.R. 862, refd to. [para. 32].

Burgess v. Rawnsley, [1975] 3 All E.R. 142 (C.A.), refd to. [para. 33].

Clark v. Clark (1890), 17 S.C.R. 376, refd to. [para. 33].

Ginn v. Armstrong (1969), 3 D.L.R.(3d) 285 (B.C.S.C.), refd to. [para. 33].

Walters v. Walters (1977), 16 O.R.(2d) 702 (H.C.J.), affd. (1978), 17 O.R.(2d) 592 (C.A.), refd to. [para. 33].

Sorensen's Estate v. Sorensen (1977), 90 D.L.R.(3d) 26 (Alta. C.A.), refd to. [para. 33].

Tompkins Estate v. Tompkins (1993), 25 B.C.A.C. 61; 43 W.A.C. 61; 99 D.L.R.(4th) 193 (C.A.), disagreed with [para. 33].

Robichaud v. Watson (1983), 42 O.R.(2d) 38 (H.C.J.), refd to. [para. 34].

McKee v. National Trust Co. et al. (1975), 7 O.R.(2d) 614 (C.A.), refd to. [para. 44].

Sampaio Estate v. Sampaio (1992), 90 D.L.R.(4th) 122 (Ont. Gen. Div.), refd to. [para. 44].

E.J. v. K.J., [2011] O.T.C. Uned. 696; 2011 ONSC 696, refd to. [para. 44].

Tessier Estate et al. v. Tessier (2001), 211 Sask.R. 50; 2001 SKQB 399, refd to. [para. 44].

Lam v. Le Estate, [2002] Man.R.(2d) Uned. 10; 25 R.F.L.(5th) 72; 2002 MBQB 31, refd to. [para. 44].

Davison v. Davison Estate (2009), 251 Man.R.(2d) 1; 478 W.A.C. 1; 2009 MBCA 100, refd to. [para. 44].

Pearlson Estate v. Pearlson, [2011] B.C.T.C. Uned. 1237; 41 E.T.R.(2d) 49; 2011 BCSC 1237, affd. [2003] B.C.A.C. Uned. 34; 35 R.F.L.(5th) 433; 2003 BCCA 57, refd to. [para. 45, footnote 6].

Zuk Estate v. Zuk, [2007] B.C.T.C. Uned. B78; 31 E.T.R.(3d) 192; 2007 BCSC 300, refd to. [para. 45, footnote 6].

Brune de Rochebrune Estate v. Salie, [2008] B.C.T.C. Uned. 788; 42 E.T.R.(3d) 269; 2008 BCSC 1166, refd to. [para. 45, footnote 6].

Ryan v. Moore et al., [2005] 2 S.C.R. 53; 334 N.R. 355; 247 Nfld. & P.E.I.R. 286; 735 A.P.R. 286; 2005 SCC 38, refd to. [para. 45, footnote 6].

Scotsburn Co-Operative Services Ltd. v. Goodwin (W.T.) Ltd., [1985] 1 S.C.R. 54; 57 N.R. 81; 67 N.S.R.(2d) 163; 155 A.P.R. 163, refd to. [para. 48].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 52].

Tavenor Estate v. Tavenor (2008), 272 Nfld. & P.E.I.R. 299; 830 A.P.R. 299; 2008 NLCA 2, refd to. [para. 63, footnote 9].

Felske Estate, Re (2009), 457 A.R. 230; 457 W.A.C. 230; 7 Alta. L.R.(5th) 77; 2009 ABCA 209, refd to. [para. 63, footnote 9].

King v. King Estate (2010), 302 Nfld. & P.E.I.R. 175; 938 A.P.R. 175; 2010 NLTD(G) 162, refd to. [para. 63, footnote 9].

Authors and Works Noticed:

Blackstone, William, Commentaries on the Laws of England (1st Ed. 1765-1769), vol. 2, pp. 181 [para. 29, footnote 3]; 183 [para. 30].

Megarry and Wade, The Law of Real Property (1957), p. 369 [para. 63].

Ziff, Bruce, Principles of Property Law (5th Ed. 2010), pp. 342, 345 [para. 34]; 347 [para. 32, footnote 4].

Counsel:

Angela Assuras, for the appellants;

Erin L. Reid, for the respondent.

This appeal was heard on January 11, 2012, before Winkler, C.J.O., Doherty and Goudge, JJ.A., of the Ontario Court of Appeal.

On February 22, 2012, Winkler, C.J.O., released the following judgment for the Court of Appeal.