Focus On

INTERESTS IN LAND - Homesteads - Joint tenancies - Partition

Monday, June 24, 2019 @ 9:35 AM  


Lexis Advance® Quicklaw®
Appeal by the husband from trial decision finding that there was a severance of the joint tenancy of the former matrimonial home and ordering its sale. Cross-appeal by the wife’s estate from trial decision finding that the husband had homestead rights in the estate’s interest in the home. The husband applied for a divorce and for partition or sale of the jointly owned matrimonial home. The wife died before the disposition of the home was completed. The parties separated in 2011. In 2012, the husband signed a notice of intent to sever title to the marital home. In 2013, the wife signed a notice of intent to sever the joint tenancy of the home. Neither notice was filed against title to the home. The trial judge found there was a severance of the joint tenancy before the wife died, at which point the husband and the wife became tenants in common, each entitled to an undivided one-half interest in the home. The trial judge found that the husband, as a tenant in common, had homestead rights in the wife’s interest as a tenant in common in the home which, upon her death, became a life estate in her interest in the home. The trial judge also found that the husband had a life interest in the home, but it did not prevent the home from being sold. She found that the husband did not demonstrate that there was a basis to refuse to grant an order for sale and exercised her discretion to order that the home be sold.

HELD: Appeal and cross-appeal dismissed. The Legislature did not intend to end the homestead protection for co-owners who were also spouses or common-law partners of each other by overturning the decision in Wimmer that had, for decades, held that otherwise qualifying co-owners had homestead rights. The trial judge erred in finding that the wife’s notice of intention to sever was filed at the land title, but this error did not affect the trial judge’s decision. The weighing of the evidence to determine whether it met the standard required to find that there was a severance was within the purview of the trial judge. The trial judge explained how she arrived at the conclusion that the standard was met and the evidence upon which she was relying to do so. The husband was asking this Court to reweigh the evidence to come to a different conclusion, but there was no basis upon which to do so. The trial judge erred in finding that the husband had a life interest in the home at the date of the trial. The wife’s undivided half interest in the home was yet to be transferred to her personal representative. Thus, the husband’s right in relation thereto remained that of a homestead claim that had not yet vested as a life interest in the home. He was a mere devisee of the life interest. Given that the husband was opposed to the sale, the estate must obtain a court order dispensing with his consent before it could sell the home. The trial judge did not err in her statement of the law and legal principles related to the granting of an order of partition or sale and she made no palpable and overriding errors in its application in this case, either to the sale of the husband’s interest as a tenant in common or to the sale of his interest in the estate’s interest. Her decision to order the sale of the home was discretionary and entitled to deference.

Siwak v. Siwak, [2019] M.J. No. 145, Manitoba Court of Appeal, H.C. Beard, C.J. Mainella and K.I. Simonsen JJ.A., May 24, 2019. Digest No. TLD-June242019003