HANSEN ESTATE vs. HANSEN

Informal Case summary questions.

• 1. what is the proper Citation?
• 2. what are the Facts?
• 3. what are the Issue(s)?
• 4. Held ?
• 5. what are the reasons Reason(s)?

Case Name: Hansen Estate v. Hansen

Between Gitte Kok and Susan Leckie, Estate Trustees for the Estate of Willy Hansen, deceased, Applicants (Appellants), and Barbara Lorraine Hansen, Respondent (Respondent)

[2012] O.J. No. 780 109 O.R. (3d) 241 75 E.T.R. (3d) 19 9 R.F.L. (7th) 251 16 R.P.R. (5th) 1 347 D.L.R. (4th) 491

Docket: C53954 Ontario Court of Appeal Toronto, Ontario W.K. Winkler C.J.O., D.H.

Doherty and S.T. Goudge JJ.A.

Heard: January 11, 2012. Judgment: February 22, 2012. (67 paras.)

Appeal From: On appeal from the order of Justice L. Templeton of the Superior Court of Justice, dated June 2, 2011.

Counsel: Angela Assuras, for the appellants. Erin L. Reid, for the respondent

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.

A. Overview

[1] Winkler, C.J.O. : This appeal raises the question of what constitutes a "course of dealing" sufficient to establish that a joint tenancy in property should be declared severed, with the result that the co-owners' interests in the property are held by way of a tenancy in common.

[2] A married couple - the respondent on appeal, Barbara Lorraine Hansen, and the deceased, Willy Hansen - held title to their matrimonial home as joint tenants. They were in the process of separating and dividing their matrimonial assets when Mr. Hansen died. At the time of his death, legal title to the home remained as a joint tenancy. After Mr. Hansen died, the respondent claimed exclusive ownership of the home through the right of survivorship, which is the defining feature of a joint tenancy.

[3] Two of the husband's daughters from a prior marriage, who are the appellants in this appeal, are the trustees for Mr. Hansen's estate. They were of the contrary view that the joint tenancy was severed before their father died and that he therefore held the home with his wife as tenants in common. Their position was that, upon their father's death, his one-half interest in the matrimonial home devolved to his estate. Under the terms of his will, which Mr. Hansen had drawn shortly before his death, he left his entire estate to his four daughters.

[4] The appellants commenced an application seeking a declaration that their father's estate is entitled to an undivided one-half interest in the matrimonial home ("the property"). The application judge dismissed the application on the basis that the joint tenancy between Mr. Hansen and Mrs. Hansen (the "respondent") had not been severed prior to Mr. Hansen's death.

[5] I would allow the appeal. While the application judge correctly enunciated the appropriate principles concerning how a joint tenancy may be severed, she erred in her application of the established test for severing a joint tenancy. The time-honoured test is whether there was a course of dealing sufficient to intimate that the interests of the parties were mutually treated as constituting a tenancy in common.

[6] In purporting to apply this test, the application judge looked to previous cases where a severance was found to have occurred through a course of dealing. However, she fell into reversible error by treating these cases as if they created recognized categories that restrict the course of dealing analysis to established patterns of conduct. She concluded that because the co-owners' conduct in the present case was not the same as the conduct in these previous cases, severance of the joint tenancy had not been established.

[7] A proper application of the course of dealing test for severing a joint tenancy requires the court to discern whether the parties intended to mutually treat their interests in the property as constituting a tenancy in common. It is not essential that the party requesting a severance establish that the co-owners' conduct falls into a formulation found to have had the effect of severing a joint tenancy in other cases. The court's inquiry cannot be limited to matching fact patterns to those in prior cases. Rather, the court must look to the co-owners' entire course of conduct - in other words the totality of the evidence - in order to determine if they intended that their interests were mutually treated as constituting a tenancy in common. This evidence may manifest itself in different ways. Each case is idiosyncratic and will turn on its own facts.

[8] I thus propose to review the facts as found by the application judge and, after setting out the relevant legal authority concerning severance of a joint tenancy, I will go on to explain how the application judge erred in applying the course of dealing test for a severance to the facts of this case.

B. Facts

[9] The property in question, 143 Speight Crescent in London, Ontario, was the matrimonial home of the respondent and her late-husband, Mr. Hansen. They were married in April 1983 and both had children from previous relationships. In 2003, they purchased the property together and held title to the property as joint tenants.

[10] In 2001, Mr. Hansen became ill and was confined to a wheelchair. He required a great deal of support from the respondent. She alleges that, as his condition worsened, he became increasingly demanding and verbally abusive towards her. In 2006, the respondent herself suffered a series of heart attacks and was hospitalized for a number of months.

[11] In February 2010, both the respondent and Mr. Hansen were hospitalized overnight. The respondent alleges that when they returned home the next day, they were met by Mr. Hansen's daughters who confronted her and accused her of mistreating their father.

[12] Following this encounter, the respondent moved out of the matrimonial home. As the application judge noted, the record is not entirely clear on the specific date that she moved out, but it was sometime in March 2010. The application judge found, at para. 8, that the respondent told her husband that she was leaving to rest and get better, and that she would continue to look after their bills and bank accounts.

[13] On March 22, 2010, Mr. Hansen retained counsel to act on his behalf for the purpose of - in the words of his lawyer in an affidavit filed on the application - "a matrimonial proceeding". On April 7, 2010, Mr. Hansen had his lawyer prepare a new will. The new will distributed his estate amongst his four daughters and did not include the respondent as a beneficiary. His lawyer deposed that the respondent had been a beneficiary under Mr. Hansen's previous will. Mr. Hansen also signed a continuing power of attorney for property and personal care naming the appellants as his powers of attorney.

[14] The respondent likewise retained counsel. Her lawyer wrote a detailed letter to Mr. Hansen's lawyer, dated April 7, 2010. The letter indicates the respondent's intention to negotiate a separation agreement that would achieve a straightforward division of the parties' assets. The letter states that the respondent wanted this division of property to occur quickly and that she was amenable to Mr. Hansen remaining in the matrimonial home, provided that he buy out her interest. To this end, the respondent intended to retain a real estate agent to determine the fair market value of the property. The letter states in its entirety:

Re: Hansen Separation Agreement

I have been retained by Lorraine Hansen. I understand that you represent her husband, Willy Hansen.

The parties have separated and Lorraine wishes to negotiate and enter into terms of a Separation Agreement with your client at this time.

As I am sure you will agree, given the length of the parties' marriage a straight-forward equalization of their property and incomes is appropriate .

Mrs. Hansen would like to make the process of negotiating the Agreement as swift and amicable as possible . The parties will need to exchange sworn Form 13.1 Financial Statements. I will provide you with Mrs. Hansen's Statement in short order and I require the same from Mr. Hansen as soon as possible.

My understanding of the parties' assets is as follows:

They jointly own the matrimonial home located at 143 Speight Crescent, London, Ontario for which we will have to determine current fair market value. We will be having a real estate agent attend at the home for this purpose .

Both parties have investments which will need to be equalized. [see footnote 1]

There are two joint accounts, one with St. Willibrord and one with T.D. Canada Trust.

The parties have two vehicles, a 1993 Volvo automobile in my client's name and a 2000 Ford Windstar van in your client's name.

In terms of income, Mrs. Hansen advised me that she receives approximately $1,136.00 per month from a combination of C.P.P., O.A.S. and a HOOPP pension. She advises me that your client receives approximately $1,860.00 monthly from a combination of C.P.P., O.A.S. and other pension income.

My client is fine with Mr. Hansen remaining in the home; however, he will be required to buy out her interest therein. If he is not prepared, or able, to do so the home will have to be listed and sold as soon as possible .

I look forward to hearing from you confirming that you are indeed acting for Mr. Hansen. I look forward, as well, to receiving your client's sworn Form 13.1 Financial Statement with supporting documentation.

My client is moving into an apartment as of April 17, 2010 and she requires resolution of this matter on an expedient basis. If your client is not prepared to negotiate the terms of the Agreement in a timely fashion my client will have no choice but to start a court application which, I would suggest, makes no sense given the straight-forward nature of what should be the resolution in this case . I am requesting that I please hear from you by this Friday April 9, 2010 . [Bold in the original. Emphasis added.]

[15] Evidently, the couple's only significant personal assets consisted of the matrimonial home, two joint bank accounts, and two cars.

[16] Counsel for Mr. Hansen replied to respondent's counsel as requested on April 9. In a very brief letter, counsel indicated that he was in the process of having a financial statement prepared for his client. He suggested that the two counsel could meet with each other after the financial statements were exchanged to determine if they "could resolve this matter."

[17] On May 17, 2010, the respondent moved into an apartment in a seniors' complex and signed a 12-month lease.

[18] At some point after the respondent moved out of the matrimonial home, she closed one of the couple's joint bank accounts and transferred the money to an account in her name. Mr. Hansen did the same with another joint account. The application judge observed, at para. 14, that the respondent closed the joint account in order to better manage the funds after noticing a number of unanticipated withdrawals. Also during this period, the utility bills for the matrimonial home were changed from the respondent's name to Mr. Hansen's. In an affidavit filed on the application, the respondent asserted that the parties maintained phone contact throughout this time.

[19] On May 20, 2010, the respondent executed a financial statement, which her counsel sent to Mr. Hansen's counsel on June 3. Also enclosed was a letter of appraisal for the house. Mr. Hansen executed a financial statement on May 31, but it had not been sent to the respondent's lawyer before his death.

[20] Mr. Hansen died on June 10, 2010. One of his children allegedly told the respondent not to attend the funeral.

[21] On the day of Mr. Hansen's death, counsel for the respondent wrote to Mr. Hansen's lawyer suggesting they discuss how the matter should proceed. Four days later, respondent's counsel wrote once again to Mr. Hansen's lawyer and asserted a right of survivorship in the matrimonial home on behalf of the respondent.

[22] As a result of this correspondence, the appellants applied for a declaration that Mr. Hansen's estate is entitled to an undivided one-half interest in the property.

C. REASONS OF THE APPLICATION JUDGE

[23] The application judge, at para. 24, referred to the following three ways of severing a joint tenancy: (i) by a person acting on his/her own share; (ii) by mutual agreement; or (iii) by "any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common." [see footnote 2] On the application, the appellants relied on the third way for severing a joint tenancy - the course of dealing between the parties - in support of their claim.

[24] The application judge enumerated what she described as "the relevant evidence regarding the conduct of the parties", at para. 27:

the respondent left the matrimonial home;

the respondent executed a 12-month lease for her new accommodation;

the billing name for the expenses relating to the property was changed from the respondent to Mr. Hansen;

each of the co-owners engaged separate counsel for the purpose of sorting out their affairs;

Mr. Hansen executed a new will excluding the respondent as a beneficiary and appointing the appellants as his executors and trustees for his estate, his person and his property;

the continued contact between the spouses;

the failure or refusal to formally sever the joint tenancy of the property;

the two letters from the respondent's counsel prior to Mr. Hansen's death, which the application judge characterized as "an invitation to negotiate [a] settlement";

the respondent gave Mr. Hansen the "opportunity ... to purchase her interest" in the property;

the one letter sent by Mr. Hansen's lawyer to counsel for the respondent prior to Mr. Hansen's death;

the respondent obtained and disclosed an appraisal of the value of the property;

both spouses executed financial statements, but only the respondent's was disclosed;

the spouses each opened separate bank accounts; and

the locks on the house were changed.

[25] After considering this factual background, the application judge concluded that "there was neither an agreement nor a 'course of dealing' between the parties" that would have the effect of severing the joint tenancy prior to Mr. Hansen's death. As she stated, at para. 41:

The evidence discloses an expression of intention but does not establish on a balance of probabilities, a clearly recognizable pattern of conduct by the parties concerning the property in question. They did not exchange offers; there was no discussion concerning a division of proceeds; there was no discussion of divorce; unlike many of the cases to which the applicants referred me including Re Walters and Walters [(1977), 16 O.R. (2d) 702 (H.C.J.), aff'd (1978), 17 O.R (2d) 592n (C.A.)] no action had been started by either party as against each other; and unlike in Ginn v. Armstrong [(1969), 3 D.L.R. (3d) 285 (B.C.S.C.)] there was no exchange of correspondence regarding their interests in the property or corroborative expression or communication of an intention by either party that their interests were to be treated as tenancies in common. [Emphasis added.]

[26] The application judge further observed that, although there had been sufficient time and opportunity for the parties to formally sever the tenancy, they had not done so. She referred to the letter from respondent's counsel to Mr. Hansen's counsel as "introductory". In the application judge's view, other than having the house valued and disclosing the respondent's financial statement to Mr. Hansen, no further steps had been taken by either spouse that would support an inference that they were mutually treating their interests in the home as a tenancy in common. In the result, she dismissed the application.

D. Analysis

[27] The appellants submit that the application judge erred in principle in holding that there was not a sufficient course of dealing between the respondent and Mr. Hansen to establish a severance of the joint tenancy prior to Mr. Hansen's death. The respondent submits that the application judge did not err, and, in any event, her decision is entitled to deference and should not be interfered with by this court.

[28] Before explaining why appellate intervention is required, I will review the pertinent authorities concerning the course of dealing test for establishing a severance of a joint tenancy. In my view, such a review is helpful due to the minimal recent judicial commentary on the subject in this province.

(1) The Law Pertaining to Severance of a Joint Tenancy

(a) Joint Tenancy versus Tenancy in Common

[29] A joint tenancy and a tenancy in common are the main forms through which two or more persons may collectively hold interests in property. In a joint tenancy, the co-owners hold the property as a unified whole such that each holds an equal interest in the property. [see footnote 3] In contrast, in a tenancy in common, one co-owner may be entitled to a greater proportionate interest in the property than the other(s).

[30] There are very few other practical differences between the two forms of land holding. Ultimately, the critical distinction between the two - what Blackstone's Commentaries refers to as "the remaining grand incident" - is the right of survivorship: Sir William Blackstone, Commentaries on the Laws of England: a facsimile of the first edition of 1765-1769, vol. 2 (Chicago: Univ. of Chicago Press, 1979), at p.183.

[31] Through the right of survivorship, the interest of a co-owner in a joint tenancy will pass equally to all of the other co-owners upon his or her death. If multiple co-owners remain, the joint tenancy remains in existence, while if only one owner survives, the entire interest in the property passes to the survivor. In contrast, upon the death of a co-owner in a tenancy in common, the deceased's interest in the property passes to his/her estate.

(b) Methods for Severing a Joint Tenancy

[32] As the application judge recognized, the classic statement setting out three ways in which a joint tenancy may be severed [see footnote 4] is that of Vice-Chancellor Wood in Williams v. Hensman (1861), 70 E.R. 862, at p. 867:

A joint-tenancy may be severed in three ways: in the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share . The right of each joint-tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Each one is at liberty to dispose of his own interest in such manner as to sever it from the joint fund-losing, of course, at the same time, his own right of survivorship. Secondly, a joint-tenancy may be severed by mutual agreement. And, in the third place, there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common . When the severance depends on an inference of this kind without any express act of severance, it will not suffice to rely on an intention, with respect to the particular share, declared only behind the backs of the other persons interested. You must find in this class of cases a course of dealing by which the shares of all the parties to the contest have been effected, as happened in the cases of Wilson v. Bell [(1843), 5 Ir. Eq. R. 501 (Eng. Eq. Exch.)] and Jackson v. Jackson [(1804), 9 Ves. 591 (Eng. Chancellor)]. [Emphasis added.]

[33] In the words of Lord Denning M.R. in Burgess v. Rawnsley, [1975] 3 All ER 142 (Eng. C.A.), at p. 146: "Nowadays everyone starts with the judgment of Page Wood V-C in Williams v. Hensman". This is likewise true of Canadian courts, which have long recognized the Vice-Chancellor's statement as the starting point for assessing severance of a joint tenancy: see, e.g., Clark v. Clark (1890), 17 S.C.R. 376, at p. 383 (Gwynne J., dissenting); Ginn v. Armstrong (1969), 3 D.L.R. (3d) 285 (B.C.S.C.), at p. 286; Re Walters and Walters (1977), 16 O.R. (2d) 702 (H.C.J.), at p. 705, aff'd (1978) 17 O.R (2d) 592n (C.A.); Sorensen's Estate v. Sorensen (1977), 90 D.L.R. (3d) 26 (Alta. C.A.), at p. 32; Tompkins Estate v. Tompkins (1993), 99 D.L.R. (4th) 193 (B.C.C.A.), at pp. 196-99. [see footnote 5]

[34] The three modes of severance referred to in Williams v. Hensman have come to be known as the "three rules": see Burgess, at pp. 152-53; Robichaud v. Watson (1983), 42 O.R. (2d) 38 (H.C.J.), at p. 44; Bruce Ziff, Principles of Property Law, 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2010), at pp. 342 and 345. The three rules may be summarized as follows:

Rule 1 : unilaterally acting on one's own share, such as selling or encumbering it;

Rule 2 : a mutual agreement between the co-owners to sever the joint tenancy; and,

Rule 3 : any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.

[35] The apposite rule in the present case is rule 3, or the course of dealing rule. As explained by Professor Ziff in Principles of Property Law, at p. 345, severance under this rule operates in equity. Rule 3 operates so as to prevent a party from asserting a right of survivorship where doing so would not do justice between the parties. In the words of Professor Ziff, at p. 345: "the best way to regard matters is to say that equity will intervene to estop the parties, because of their conduct, from attempting to assert a right of survivorship." What is determinative under this rule is the expression of intention by the co-owners as evidenced by their conduct: see Robichaud, at p. 45.

[36] Rule 3 governs cases where there is no explicit agreement between the co-owners to sever a joint tenancy. In contrast, rule 2 is engaged where a mutual agreement to sever is claimed to exist. This distinction between rule 2 and rule 3 is significant. What follows from this distinction is that the proof of intention contemplated by rule 3 does not require proof of an explicit intention, communicated by each owner to the other(s), to sever the joint tenancy. If such proof were required, then rule 3 would be rendered redundant because a communicated common intention would be tantamount to an agreement. Instead, the mutuality for the purposes of rule 3 is to be inferred from the course of dealing between the parties and does not require evidence of an agreement.

[37] This distinction between rules 2 and 3 was recognized in all three sets of reasons given in Burgess: see Lord Denning M.R., at p. 147; Browne L.J., at p. 151, and Sir John Pennycuick, at pp. 153-54. For example, Sir Pennycuick stated, at pp. 153-154:

I do not think rule 3 in Page Wood V-C's statement is a mere sub-heading of rule 2. It covers only acts of the party, including, it seems to me, negotiations which, although not otherwise resulting in any agreement, indicate a common intention that the joint tenancy should be regarded as severed.

Accordingly, if there is an agreement between the co-owners, then there is no need to prove a course of dealing. Logically the reverse holds true as well.

[38] The phrase in rule 3 - "the interests of all were mutually treated" - requires that the co-owners knew of the other's position and that they all treated their respective interests in the property as no longer being held jointly. Such knowledge can be inferred from communications or conduct. The requirement that the co-owners knew that their interests in the property were being mutually treated as held in common was emphasized in Williams v. Hensman, at p. 867:

[I]t will not suffice to rely on an intention, with respect to the particular share, declared only behind the backs of the other persons interested.

[39] While the determination under the course of dealing test is an inherently fact-specific assessment, the underlying rationale for rule 3 is that it is a means of ensuring that a right of survivorship does not operate unfairly in favour of one owner (or owners) where the co-owners have shown, through their conduct, a common intention to no longer treat their respective shares in the property as an indivisible, unified whole. For example, in the context of negotiations between spouses who are in the midst of a marriage breakdown, even failed or uncompleted negotiations can lead to a severance because "the negotiation of shares and separate interests represents an attitude that shows that the notional unity of ownership under a joint tenancy has been abandoned" (emphasis in original): Principles of Property Law, at p. 347.

(c) Canadian Jurisprudence on the Course of Dealing Test in the Context of a Marriage Breakdown

[40] There are two cases that are routinely cited by Ontario courts in applying the course of dealing test: the 1977 decision of the Ontario High Court of Justice in Re Walters, and the 1969 decision of the British Columbia Supreme Court in Ginn. Both decisions involved conduct by spouses who were in the process of separating and dividing their family assets.

[41] In Re Walters, a husband and wife owned their matrimonial home as joint tenants. The couple separated after 14 years of marriage. The wife began proceedings for divorce, maintenance and partition of their property. The couple adjourned the maintenance proceedings in order to negotiate a settlement. The husband took the position that the wife was not entitled to maintenance because she had a one-half interest in the matrimonial home. The husband delivered appraisals of the property to the wife. The wife, through counsel, offered to purchase the husband's interest, but the husband refused the offer, insisting it was too low. His counter-offer was refused by the wife. The wife obtained another appraisal. During the course of negotiations, the husband executed a new will that no longer included his wife as a beneficiary. Before the partition application could be heard or the negotiations could be completed, the husband died.

[42] In Ginn, the parties' matrimonial home was held as joint tenants, but was paid for entirely out of the husband's earnings. After a number of years of marriage, the wife left the matrimonial home. Correspondence was exchanged between the couple's lawyers, the "main tenor" of which indicated that the wife wanted a sale of the premises "and the payment of one-half of the proceeds to her". The husband did not want to pay her anything. He sent the wife a new deed which conveyed her half-interest in the property to her son. The wife refused to sign the deed. The husband died before their affairs could be settled. The wife testified that her sole concern was to receive the value of her half-interest in the matrimonial home.

[43] In both cases, the surviving wife asserted the right of survivorship. The courts in each case found that the statements and conduct between the parties and their counsel, including the content of the negotiations over the parties' interests in the matrimonial home, constituted a course of dealing that demonstrated the parties were mutually treating their interests in the matrimonial home as constituting a tenancy in common. The courts concluded that even though the negotiations did not produce an agreement to sever (under rule 2), the joint tenancy should be found to have been severed based on this course of dealing.

[44] Courts in this province have routinely referred to Re Walters and Ginn in deciding whether negotiations between spouses during a marriage breakdown have revealed an intention to mutually treat the interests in a matrimonial home as constituting a tenancy in common: see, e.g., Re McKee and National Trust Co. Ltd. (1975), 7 O.R. (2d) 614 (C.A.), at pp. 618-19; Sampaio Estate v. Sampaio (1992), 90 D.L.R. (4th) 122 (Ont. Ct. (Gen. Div.)), at pp. 126-28; Robichaud, at pp. 46-47; Jurevicius v. Jurevicius, 2011 ONSC 696, at paras. 21-22. Courts in other provinces have taken a similar approach in applying the course of dealing test in this context: see, e.g., Tessier Estate v. Tessier, 2001 SKQB 399, 211 Sask. R. 50, at para. 12; Lam v. Le Estate, 2002 MBQB 31, 25 R.F.L (5th) 72, paras. 18-20; Davison v. Davison Estate, 2009 MBCA 100, 251 Man. R. (2d) 1, at para. 4.

[45] However, the British Columbia Court of Appeal has framed the course of dealing test somewhat differently than have courts in Ontario and elsewhere in Canada. In Tompkins Estate, the court considered the meaning of the course of dealing test in the context of a marriage breakdown. Southin J.A., speaking for the court, expressed the view, at p. 199, that in articulating the third rule of severance in Williams v. Hensman, the Vice-Chancellor was "postulating a species of estoppel". In her view, for severance to be established through a course of dealing, there must be evidence of detrimental reliance such as would ordinarily be required to invoke the doctrine of estoppel. Southin J.A. declared, at p. 199, that "in so far as the judgment in Ginn v. Armstrong ... was founded on an application of the third category inconsistent with this judgment" - that is, that did not require evidence of detrimental reliance - "it can no longer be considered good law in this province." [see footnote 6]

[46] Southin J.A. may have been correct in stating that the Vice-Chancellor applied the course of dealing test to what was, on the facts of Williams v. Hensman, an instance of estoppel. However, to the extent that Southin J.A. interprets rule 3 as a "species of estoppel" requiring proof of detrimental reliance, I cannot agree.

[47] In describing the course of dealing test, the reasons of the Vice-Chancellor in Williams v. Hensman do not refer to the doctrine of estoppel, nor do his reasons invoke the concept of detrimental reliance. It is possible that Southin J.A. may have viewed the course of dealing test as a species of estoppel because both legal principles are designed to prevent unfairness or injustice as between the parties. However, the elements of each doctrine are different, as are the requirements of proof.

[48] An estoppel may be established through evidence that one party made a representation, whether communicated expressly or through conduct, to another and that the other party relied on that representation to his or her detriment: see Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53, at paras. 67-69; Scotsburn Co-operative Services v. WT Goodwin Ltd., [1985] 1 S.C.R. 54, at pp. 65-66. Upon such facts being established, the doctrine of estoppel may be applied to prevent the party from resiling from his or her representation to prevent unfairness.

[49] In contrast, a course of dealing that is sufficient to establish a severance of a joint tenancy requires that the co-owners knew of the other's position and that they all treated their respective interests in the property as no longer being held jointly. However, unlike in the case of an estoppel, the course of dealing test does not require proof that a party relied to his/her detriment on a representation that a co-owner no longer wants to hold the property jointly. The rationale for severing the joint tenancy relates to the inappropriateness of the right of survivorship in circumstances where the co-owners have mutually treated their interests in the property as being held in common. The rationale is not contingent on the fact that one party relied on the representation to his/her detriment. [see footnote 7]

[50] Indeed, a likely act of reliance in a course of dealing case would be the act of refraining from pursuing other methods of severance based on the understanding that the co-owners were mutually treating the property as a tenancy in common. However, it would be difficult to prove that the failure to pursue a different means of severance was attributable to reliance. Moreover, the challenge in proving reliance is significantly complicated by the fact that such evidence is unlikely to become relevant until after the death of the individual who is said to have relied on the representation.

[51] In addition to generally disagreeing with Southin J.A.'s view in Tompkins that the course of dealing test is a form of estoppel requiring evidence of detrimental reliance, I respectfully cannot agree with Southin J.A.'s specific characterization of the third rule as requiring the presence of "facts which preclude one of the parties from asserting that there was no agreement" (at p. 199). Rule 3 does not require evidence of an agreement. As noted above, the English Court of Appeal concluded in Burgess that the presence of an agreement is not part of the analysis under rule 3. A request for severance in those circumstances would be dealt with under rule 2. Rule 3 relates more broadly to evidence disclosing a course of conduct indicating that the interests in the property were being held in common and not jointly.

(2) Applying the Course of Dealing Test to the Facts of this Case

(i) The Application Judge Erred in Applying the Test to the Evidence

[52] The application judge correctly described, at para. 35, the governing test that severance can occur through a course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. However, when it came to applying the test to the evidence, the application judge fell into reversible error. Deference to the application judge cannot shield an error in principle: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36.

[53] It seems to me that the application judge's error in applying the course of dealing test can be traced to her reliance, at para. 38, on the definition of "course of dealing" in Black's Law Dictionary, 7th ed. (St. Paul, MN: West Pub. Co., 1999). Black's Law Dictionary defines this phrase as "a clearly recognizable pattern of conduct established through a series of transactions or the implementation of decisions". Based on this definition, the application judge proceeded to describe certain fact patterns from previous cases and treated these fact patterns as though they constitute recognizable patterns of conduct that must be proven in order to meet the course of dealing test. Her observation at para. 39 illustrates the point:

An attempt to sever a joint tenancy through a will is ineffective but the issuance of a writ to commence a partition application may be sufficient... The commencement of a divorce action, a motion under the Partition Act, and the exchange of mutual offers to purchase all amount to a course of dealing to sever the joint tenancy by mutual agreement but a simple offer and counter-offer cannot. [Emphasis in original. Footnotes omitted.]

[54] The application judge went on to apply this category-based approach to the evidence and concluded as follows, at para. 41:

The evidence discloses an expression of intention but does not establish on a balance of probabilities, a clearly recognizable pattern of conduct by the parties concerning the property in question. [Mr. and Mrs. Hansen] did not exchange offers; there was no discussion concerning a division of proceeds; there was no discussion of divorce; unlike many of the cases to which the applicants referred me including Re Walters and Walters no action had been started by either party as against each other; and unlike in Ginn v. Armstrong there was no exchange of correspondence regarding their interests in the property or corroborative expression or communication of an intention by either party that their interests were to be treated as a tenancies in common. [Emphasis added. Citations omitted.]

[55] By proceeding in this manner, the application judge reversed the route of analysis required under rule 3 of Williams v. Hensman and imposed an evidentiary threshold that is not mandated by the course of dealing test. She considered only evidence of selected aspects of the spouses' conduct which was similar to conduct identified in previously decided cases. And she overlooked - or minimized the significance of - much of the evidence of the spouses' conduct that she had referred to at para. 27 of her reasons (set out at para. 24 above). For example, the application judge stated, at para. 43:

I find that the initial letter from counsel for Mrs. Hansen was an introductory letter only addressing the possibility of settlement of the issues. Other than the provision of Mrs. Hansen's Financial Statement and an opinion as to the value of the home to counsel for Mr. Hansen, no further steps were taken by either party to raise an intimation on a balance of probabilities that they mutually treated their interests in the home as constituting tenancies in common.

[56] By adopting this category-based approach to the course of dealing test, the application judge failed to appreciate the significance of the following aspects of the evidence before her: the respondent moved out of the matrimonial home; the spouses were negotiating the separation of their family assets - the most significant of which was the matrimonial home - on the undisputed premise of achieving an equal division; the respondent took steps towards valuing her half-interest in the home; Mr. Hansen re-wrote his will in a way that was inconsistent with the operation of a right of survivorship; and the spouses opened separate bank accounts.

(ii) Applying the Course of Dealing Test to the Totality of the Evidence

[57] When the evidence of the respondent and Mr. Hansen's course of dealing is considered as a whole, it is clear that the evidence is "sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common": Williams v. Hensman, at p. 867. From the time the spouses separated until Mr. Hansen's death, the spouses took a number of steps which reveal that they were each treating their interests in the property as distinct. In other words, their conduct demonstrated they were mutually treating their co-ownership as a tenancy in common and not as a joint tenancy.

[58] In the months immediately prior to Mr. Hansen's death, he and the respondent engaged in a course of conduct that involved separating their lives and dividing their assets. The respondent moved out of the matrimonial home and leased her own apartment, while Mr. Hansen remained in the home and took responsibility for it, including by having the utility bills put in his name.

[59] Both parties retained separate lawyers. At the respondent's instructions, her lawyer wrote a letter to Mr. Hansen's lawyer setting forth the following demands:

the respondent wanted to begin negotiating a separation agreement with a view to conducting a "straight-forward equalization of their property and incomes";

the negotiation was to be "swift" and "amicable";

the negotiation related to all of the co-owners' assets, including the property at issue;

the co-owners needed to exchange sworn financial statements;

the property was to be appraised;

the respondent was content to allow Mr. Hansen to remain in the matrimonial home, but, if that were to occur, he would have to buy out her interest in the property. If he decided not to remain, the property would have to be listed and sold as soon as possible;

the matter needed to be resolved on an expedient basis and if this could not be done on a timely basis, a court application would be commenced;

Mr. Hansen's lawyer should reply by April 9 (in two days' time).

[60] Mr. Hansen's lawyer complied with the request to reply by April 9. He advised that he was preparing a financial statement and suggested a meeting after the exchange of financial statements to see if they could resolve the matter. No issue was taken with the proposed equal division of the spouses' assets. More importantly, no issue was taken with the respondent's proposal that Mr. Hansen would either have to buy out the respondent's interest in the property if he chose to remain in the home, or alternatively, the property would have to be listed and sold. [see footnote 8]

[61] Counsel for the respondent on appeal argued that the exchange of correspondence between the spouses' lawyers is not evidence of conduct capable of severing the joint tenancy because the spouses had only exchanged an "invitation" to negotiate. I disagree with this characterization of the exchange. The correspondence speaks for itself. The letter of April 7th lists all of the spouses' assets and proposes an equal division. It imposes tight time restrictions and threatens legal action if the matter is not resolved expediently. Mr. Hansen's lawyer complied with the demands made of him. He had Mr. Hansen execute a financial statement on May 31, 2010, although it was not sent to the respondent prior to his death. As promised in the April 7th letter, counsel for the respondent sent Mr. Hansen's counsel a real estate appraisal valuing the property. It is hard to imagine what remained to be done except for documenting the agreement, given that the principle of equal division driving the resolution was not in dispute.

[62] Other evidence supporting the intimation that the spouses were mutually treating their interests in the property as being held in common is that, on April 7, 2010 - the same date that counsel for the respondent's letter was faxed to Mr. Hansen's counsel - Mr. Hansen instructed his lawyer to draft a new will reflecting his intention that his estate should pass to his children and not to the respondent. In the new will, Mr. Hansen bequeathed his entire estate, consisting of "all [of his] property of every nature and kind and wheresoever situate" to his children. The matrimonial home was the only significant asset in his estate. The respondent, who had been a beneficiary under his former will, was not a beneficiary under his new will.

[63] I recognize that a testamentary disposition cannot, in itself, sever a joint tenancy: "[t]he right of survivorship takes precedence over any disposition made by a joint tenant's will": Sorensen's Estate, at p. 35, citing Megarry and Wade, The Law of Real Property (London: Stevens & Sons Ltd, 1957), at p. 369. A declared intention not communicated to a co-owner is, on its own, insufficient, on its own, to establish a mutual intention to sever a joint tenancy. [see footnote 9] And I accept that no greater weight should be given to such a unilateral expression simply because it is found in a testamentary document. That said, the intention shown by Mr. Hansen's decision to leave his estate to his daughters is relevant in determining the existence of a course of dealing under rule 3. Specifically, his decision to do so supports the case for severance insofar as the decision is consistent with other evidence that the spouses mutually treated their interests in the property as no longer being held jointly.

[64] Similarly, the co-owners' conduct in closing their joint bank accounts and opening separate bank accounts is consistent with the other evidence militating in favour of severance. This conduct further indicates a mutual intention to divide up their assets.

[65] Ultimately, the respondent's assertion of a right of survivorship whereby she would acquire exclusive ownership of the property is entirely inconsistent with the co-owners' mutual intention, as revealed by their correspondence and their conduct, to divide their interests in the property and hold their interests in common rather than jointly. Indeed, giving effect to the asserted right of survivorship would confer a windfall upon the respondent at the expense of Mr. Hansen's estate that would be contrary to these mutual intentions.

E. DISPOSITION

[66] I would allow the appeal. I would grant a declaration that the appellants are entitled to an undivided, one-half interest in the property located at 143 Speight Crescent, London, Ontario.

[67] The parties consented to a costs award of $5000 to the successful party on appeal and a reversal of a costs order below if the appellants are successful. Thus, I would order that the respondent to pay to the appellants $5000 inclusive of HST in respect of costs of the appeal, and I would reverse the costs order below.

Appeal allowed.

Editor: Steven C. McMinniman/clh

Footnotes

1. The spouses' subsequently executed financial statements that do not refer to any investments aside from several bank accounts.

2. Williams v. Hensman (1861), 70 E.R. 862, at p. 867.

3. This characteristic of a joint tenancy is known as "unity of interest": Sir William Blackstone, Commentaries on the Laws of England: a facsimile of the first edition of 1765-1769, vol. 2 (Chicago: Univ. of Chicago Press, 1979), at p. 181. Two other "unities" are also required to establish a joint tenancy: unity of title and unity of time. In contrast, the unities of interest, time and title are not necessary to establish a tenancy in common: Blackstone, pp. 180-82. However, both a joint tenancy and a tenancy in common require the existence of the fourth unity - unity of possession - in that all co-owners must collectively own the undivided whole of the property rather than, for instance, each owning a particular section of the property: Blackstone, p. 182.

4. As Professor Bruce Ziff points out in Principles of Property Law, 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2010), at p. 347, the three modes of severance listed in Williams v. Hensman are not the only means for severing a joint tenancy. Other means include severance that occurs on bankruptcy or by judicial sale.

5. The common law rules of severance remain in effect in Ontario despite the changes to the registration of title which occurred under the Land Titles Act, R.S.O. 1990, c L.5. As stated in a bulletin issued by the Ontario Ministry of Consumer and Commercial Relations, Bulletin No. 96005, "Land Titles Act: Joint Tenancy" (20 December 1996):

In the land titles system, the registration of a charge by fewer than all the joint tenants, does not automatically sever the joint tenancy. The registration of the charge is not, in itself, unequivocal evidence of an intention to sever the joint tenancy. The existence of an intention is a question of fact that should be decided by the Courts.

6. Several British Columbia courts have followed Tompkins: see Pearlson Estate v. Pearlson, 2001 BCSC 1237, 41 E.T.R. (2d) 49, at paras. 25-26 and 34, aff'd 2003 BCCA 37, 35 R.F.L. (5th) 433 (however the Court of Appeal noted, at para. 2, that it was affirming the decision on the basis of rule 2 and that it need not fully consider the "reach and meaning" of Williams v. Hensman); Zuk Estate v. Zuk, 2007 BCSC 300, 31 E.T.R. (3d) 192, at paras. 16-20; de Rochebrune Estate v. Salie, 2008 BCSC 1166, 42 E.T.R. (3d) 269, at paras. 17-22. While the Manitoba Court of Queen's Bench in Gusto Estate v. Whyte (1998), 125 Man. R. (2d) 108, cites the language of the test from Tompkins, at para. 41, the court went on to rely on Ginn, Re Walters, and Robichaud, in applying the law, at para. 42. A search of reported decisions failed to uncover any commentary on Tompkins by courts in this province.

7. Of course, the equitable doctrine of estoppel could apply in the event that one party attempted to resile from a prior representation to the other co-owners that he or she intended to sever a joint tenancy and the other co-owners had relied on this representation to their detriment.

8. Of course, in order to show a mutual intention to a tenancy in common, it is not sufficient that a co-owner simply seeks to sell the property: see Principles of Property Law, at p. 345. However, in this case, the letter from respondent's counsel demands an equalization of all of the party's assets, which would likewise apply to any proceeds of sale.

9. It is not necessary for the purpose of this appeal to decide whether a unilateral declaration that is communicated to the other co-owner(s) could effect a severance of a joint tenancy: see Sorensen's Estate, at p. 39; Tavenor Estate v. Tavenor, 2008 NLCA 2, 272 Nlfd. & P.E.I.R. 299, at paras. 13-15; Felske Estate v. Donszelmann, 2009 ABCA 209, 7 Alta. L.R. (5th) 77, at para. 7; King v. King Estate, 2010 NLTD(G) 162, 302 Nfld. & P.E.I.R. 175, at para. 18.

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