“A joint tenant has a prima facie right to partition or sale of land. An exception is where the applicant has acted maliciously, oppressively or with a vexatious intent towards the respondent relating to the partition and sale issue itself (Silva v. Silva, (1990) 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (C.A.), at p. 441).
The Applicant has proven that she is registered on title as a joint tenant. The Respondent does not deny this.
Furthermore, there is no evidence that supports a finding that the Applicant has acted maliciously, oppressively or with a vexatious intent towards the Respondent as relates to the proposed partition and sale of the Property.
However, the Respondent asserts that placing the Applicant on title was gratuitous and therefore presumptively gives rise to a resulting trust in his favour. He relies on Pecore v. Pecore, 2007 SCC 17 (CanLII).
A resulting trust arises when title to a property is in one party’s name, but that party is either a fiduciary holding it in trust for the transferor or gave no consideration for that property (Pecore, at para. 20). If either situation is established, then it gives rise to a rebuttable presumption of a resulting trust (Pecore, at para. 22). As explained in Pecore, at paras 24-25, a rebuttable presumption of a resulting trust places the onus on the recipient or transferee to prove, on a balance of probabilities, that a gift was intended.
However, there is an exception to this general presumption of a resulting trust called a presumption of advancement. A presumption of advancement arises in two situations, one of which is a transfer between a husband and a wife (Pecore, at paras. 28). The Respondent argues that since he and the Applicant were not married, therefore, this presumption of advancement does not apply.
I agree with the Respondent. The Legislature had codified this presumption of advancement and did not include unmarried couples in s. 14 of the FLA. This is in keeping with the exclusion of unmarried couples from the equalization and matrimonial home regimes under Parts I and II of the FLA. It also codified the presumption of resulting trust in other situations under the same provision.”