“There is clear jurisdiction under the Partition Act, R.S.O. 1990, Chapter P.4 to order the sale of jointly owned property prior to trial. However, an order for directing the sale of a matrimonial home before trial should only be made where, in all the circumstances, it is appropriate to do so. Additionally, an application for partition and sale should not proceed where it would prejudice the rights of either spouse under the Family Law Act (Martin v. Martin, 1992 CanLII 7402 (ON CA); Silva v. Silva, 1990 CanLII 6718 (ON CA)).
In this case, 153 Bandelier Way is neither a jointly owned property nor is it the matrimonial home. Nevertheless, Ms. Vo seeks an order for the sale of the Bandelier property based on her 50% interest arising from the Trust Agreement entered into the parties on August 28, 2018, a copy of which is attached as Exhibit “K” to Ms. Vo’s affidavit sworn on October 13, 2020.
The “Acknowledgement of Trust” provides that the transferee of 153 Bandelier Way, Mr. Tran, is holding the property in trust for the beneficial owners, Minh Thein Tran (50%) and Kim Vo (50%). Handwritten next to the named beneficiaries are the words “AS JOINT TENANTS”, however, this addition is not initialed by the parties. The Acknowledgement nevertheless goes on to state:
-
-
-
-
- I hereby acknowledge and confirm that the interest in the said lands is held for and solely on behalf of the beneficiaries.
- I covenant and agree not to do any act or thing, or institute any action or proceedings of any nature, without having first obtained the consent and authorization of the beneficiaries herein.
- This Acknowledgement of Trust shall be binding upon and enure to the benefit of the respective heirs, executors, administrators, successors and assignees of the beneficiaries and myself.
-
-
-
The parties acknowledged on the document that they waived independent legal advice, understand their respective rights and obligations, understand the nature and effect of the agreement, understand that the provisions of it are equitable and are signing voluntarily. The document is signed by both parties, whose signatures are witnessed.
Although Mr. Tran has requested an order in his Notice of Cross-Motion “declaring that the real property owned by the Respondent being 153 Bandelier Way, Kanata, Ontario, belongs solely to the Respondent and removing the Trust Agreement signed by the parties at the time of purchasing the real property, being legally described as Part Block 260, Plan 4M1597, Part 4 on Plan 4R-31308”, he does not provide any evidence to the court in relation thereto, nor has he provided any legal argument to support his request for this relief. To “remove” or essentially set aside the trust agreement, which Mr. Tran acknowledged was voluntarily entered into, would require both evidence as to why it should be set aside, and some basis in law to do so. Having neither, I dismiss Mr. Tran’s request for such a declaratory order.
Sections 2 and 3(1) of the Partition Act, R.S.O. 1990, Chapter P.4 provide, under the title “Who may be compelled to make partition or sale”:
2 All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.
3(1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.
By virtue of the Acknowledgement of Trust dated August 28, 2018, Ms. Vo is most definitely a “person interested in” 153 Bandelier Way, and is a person who, by virtue of that interest, has the ability to bring an application to the court to have the property listed for sale.”