“Pursuant to ss. 2 and 3 of the Partition Act, all joint tenants or tenants in common and all parties interested in 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. Any person interested in land in Ontario may seek an Order for the sale of the land under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.
The Partition Act provides a prima facie right to a joint tenant or tenant in common to partition or sale of lands. There is a corresponding obligation on the other owner to permit partition or sale.
The court should compel such partition or sale if no sufficient reason appears why such an order should not be made: Davis v. Davis, 1953 CanLII 148 (ON CA), [1954] 1 D.L.R. 827 (C.A.), at p. 830.
The discretion to refuse partition should only be granted in circumstances of malice, oppression, or vexatious intent: Greenbanktree Power Corp. v. Coinamatic Canada Inc. (2004), 2004 CanLII 48652 (ON CA), 75 O.R. (3d) 478 (C.A.), at para. 1, and Latcham v. Latcham (2002), 2002 CanLII 44960 (ON CA), 27 R.F.L. (5th) 358 (Ont. C.A.).
The case law generally favours an order for partition or sale of a home by a co-tenant unless the opposing party can demonstrate prejudice. The onus is generally on the party resisting the sale to show prejudice. Prejudice has been defined as conduct by the moving party seeking the sale that is malicious, vexatious, or oppressive. That type of conduct is characterized by bad faith involving some sort of hidden agenda or purpose connected to the requirement for a sale of the property: Crews v. Bradford, 2018 ONSC 6413, at para. 15; Akman v. Burshtein, [2009] O.J. No. 1499 (S.C.), at para. 38.
Personal hardship or inconvenience is not a sufficient reason to refuse an order granting partition or sale: Davis v. Davis; Akman v. Burshtein, at para. 58.”