Horne v. Horne Estate, (1987) 21 O.A.C. 313 (CA)

• Judge: Brooke, Robins and Tarnopolsky, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 26, 1987
• Jurisdiction: Ontario
• Citations: (1987), 21 O.A.C. 313 (CA)

Horne v. Horne Estate (1987), 21 O.A.C. 313 (CA)

MLB headnote and full text

Loretta Rita Horne (applicant/appellant) v. Linda Evans, Executrix of the Estate of Hillis Archibald Horne (respondent/respondent)

Indexed As: Horne v. Horne Estate

Ontario Court of Appeal

Brooke, Robins and Tarnopolsky, JJ.A.

May 28, 1987.

Summary:

A husband and wife owned a matrimonial home as joint tenants. Shortly before the husband's death and without his wife's knowledge or consent, the husband executed a deed transferring his interest in the property to himself, for the express purpose of severing the joint tenancy. He thereafter bequeathed his interest by will to his daughter of a previous marriage. Following his death, his widow applied under ss. 42 and 44 of the Family Law Reform Act to set aside the deed to the daughter and a subsequent deed from the husband's executrix to the daughter.

The Ontario High Court, in a decision reported in 54 O.R.(2d) 510, dismissed the application. The wife appealed.

The Ontario Court of Appeal dismissed the appeal.

Family Law - Topic 635

Husband and wife - Marital property - Matrimonial home - Disposition of - Consent of spouse - S. 42 of the Family Law Reform Act, R.S.O. 1980, c. 152 (now. s. 21 of the Family Law Act, S.O. 1986, c. 4) imposed a statutory prohibition against the disposal or encumbrance by a spouse of an interest in a matrimonial home without the joinder or consent of the other spouse - The Ontario Court of Appeal held that the prohibition imposed by s. 42 did not apply where one spouse without the consent of the other transferred his or her interest by deed to himself or herself to sever a joint tenancy - See paragraphs 12 to 16.

Real Property - Topic 3890

Joint estates - Joint tenancies - Severance of - Unilateral acts which result in severance - The Ontario Court of Appeal stated that a deed from a joint tenant to himself or herself destroys the unity of title essential to the continuance of a joint tenancy and operates to create a tenancy in common - See paragraph 12.

Words and Phrases

Disposition of an interest - The Ontario Court of Appeal discussed the meaning of the phrase "disposition of an interest" as found in s. 42 of the Family Law Reform Act, R.S.O. 1980, c. 152 (now s. 21 of the Family Law Act, S.O. 1986, c. 4) - See paragraphs 12 to 16.

Cases Noticed:

Timko v. Kozub's Estate and Kozub (1984), 3 O.A.C. 33; 45 O.R.(2d) 558, consd. [para. 1].

Van Dorp and Van Dorp, Re (1981), 30 O.R.(2d) 623 (Co. Ct.), consd. [para. 5].

Lamanna and Lamanna, Re (1983), 145 D.L.R.(3d) 117 (Ont. H.C.), agreed with [para. 6].

Gignac and Schroeder, Re (1984), 23 A.C.W.S.(2d) 482, refd to. [para. 7].

Bank of Montreal and Norton, Re (1983), 44 O.R.(2d) 39, refd to. [para. 7].

Wierzbicki and Wierzbicki, Re (1986), 55 O.R.(2d) 77 (H.C.), consd. [para. 10].

Statutes Noticed:

Family Law Reform Act, R.S.O. 1980, c. 152, sect. 40(1) [para. 13]; sect. 40(2) [para. 13]; sect. 41(3) [para. 13]; sect. 42 [paras. 1, 3-6, 8, 10, 12, 14-16]; sect. 44(d) [para. 3].

Family Law Act, S.O. 1986, c. 4, sect. 19(1) [para. 13]; sect. 19(2) [para. 13]; sect. 20(6) [para. 13]; sect. 21 [paras. 1, 4, 8, 12, 14-16]; sect. 23 [para. 4]; sect. 26 [para. 13].

Counsel:

Michael W. Shain, for the applicant/appellant;

F. Scott Sievert, for the respondent/respondent.

This appeal was heard before Brooke, Robins and Tarnopolsky, JJ.A., of the Ontario Court of Appeal on February 26, 1987. The decision of the Court of Appeal was delivered by Robins, J.A., and released on May 28, 1987.