Legal Blog

Joint Ownership

Can a judgment creditor seize the interest of a non-debtor joint tenant? This question was answered – again – by the Ontario Court of Appeal in a 2023 decision in Senthillmohan v. Senthillmohan. We say “again” because, to our way of thinking, the answer to this question was obvious and had been applied many times in the past.

Facts With a Twist

This case arose out of a family law dispute between separated spouses. Incidental to their dispute, a court granted an order directing a sale of their matrimonial home. Nine months later, in September 2021, a third-party creditor obtained a judgment against the husband in a civil action and filed a writ of seizure and sale. In October 2021, the spouses entered into an agreement of purchase and sale to sell the home. In November 2021, the wife obtained an order severing the joint tenancy of the matrimonial home. That order was silent as to when it took effect (i.e., was it retroactive?) and did not address the creditor’s claim. The creditor agreed to temporarily lift its writ to facilitate the sale, subject to the net proceeds of $925,818 being held in trust pending the disposition of the creditor’s claim against them.

In February 2022, the wife brought a motion for the release of her 50% share of the net proceeds, subject to some adjustments. The creditor opposed that motion and claimed that, by virtue of its judgment against the husband, it had the right to the full amount of the net proceeds. The creditor argued that, because the spouses were joint tenants when the creditor obtained its default judgment against the husband and filed its writ, it, therefore, had priority over the wife’s interest in the proceeds of sale.

The motion judge rejected the creditor’s argument and found that the joint tenancy had been severed by the time the creditor obtained its judgment because, when the judge who ordered the severance of the joint tenancy made his order, he was aware that the creditor existed; further, the spouses were already separated when the husband entered into a creditor-debtor relationship with the creditor.

The creditor appealed the decision. Neither of the two reasons for the motion judge’s decision was overly persuasive – at least for us. However, keep in mind that a party appeals a decision, not the reasons in support of it.

Misunderstand

The creditor argued that the motion judge erred when he concluded the joint tenancy of the matrimonial home was retroactively severed by the severance order. In effect, the Court of Appeal said “we do not care.” It simply did not matter whether the severance was retroactive; the issue as to the timing of the severance was a red herring. Even if the spouses held the matrimonial home as joint tenants at the time that the creditor filed its writ, the creditor could only seize the interest of the judgment debtor in the home. The court stated “In our view, the appellant’s position fundamentally misunderstands the law of creditors’ remedies against jointly-held property where only one of the owners guaranteed the debt.” This is not a statement that a lawyer for the losing party wants to see.

Unity

The creditor relied on law that stands for the proposition that each joint tenant holds an undivided interest in the whole of the property. In order for a joint tenancy to exist, there must be four unities: unity of title, unity of interest, unity of possession, and unity of time. For example, in dealing with unity of title, one cannot have one party with a 25% interest and the other with a 75% interest and still have a joint tenancy. They must each have a 50% interest. The creditor therefore claimed that because joint tenants are essentially one owner until the joint tenancy is severed, a creditor has the right to claim against the full 100% of the home.

Unfortunately, the creditor did not take into account the legislation that actually gave the creditor the right to enforce its judgment. Section 9(1) of the Ontario Execution Act states:

9(1) The sheriff to whom a writ of execution against lands is delivered for execution may seize and sell thereunder the lands of the execution debtor, including any lands whereof any other person is seized or possessed in trust for the execution debtor and including any interest of the execution debtor in lands held in joint tenancy. (emphasis added)

The creditor’s argument had two major problems:

• The process of seizure and execution on debts contemplates execution against the debtor’s interest in land held in joint tenancy. The husband debtor only had a 50% interest.
• The law is clear that when a sheriff takes sufficient steps to seize property, a joint tenancy is severed and once severed, the debtor joint tenant no longer has a claim to the whole. Similarly, the creditor may only execute against the debtor’s share in what becomes a tenancy-in-common.

The court also noted that when a property is held jointly and one joint tenant dies, the remaining joint tenant acquires the entire interest in the property through right of survivorship. If a writ is filed against jointly held land before the debtor joint tenant’s death, the writ does not continue to bind the surviving non-debtor’s complete interest in the property acquired through right of survivorship.

Calculation

In calculating the amount of the wife’s interest in the matrimonial home, the motion judge started with the sale proceeds and then deducted the usual expenses that were part of the sale: the mortgage encumbrance, a construction lien, legal fees, and real estate commissions. Each of these was equally applied to the respective shares of the husband and the wife. However, Canada Revenue Agency had a lien, arising from the husband’s actions, that bound the matrimonial home, but did not arise from a shared debt between the husband and the wife; the amount to pay that lien was deducted from the husband’s share only. Accordingly, the motion judge calculated the husband’s share at $323,462 and the wife’s share at $602,356. The court saw no error in that calculation.

The creditor also complained about an equalization payment ordered between the husband and the wife, although the reasons for decision gave little information regarding either the equalization payment or the creditor’s argument about it. The court gave little information because it noted that the wife’s claim to the sale proceeds had nothing to do with an equalization payment. The wife’s claim to the proceeds was a direct ownership claim.

Result

The court dismissed the appeal. Presumably, the wife would have received $602,356 and the creditor would have received $323,462 from the net proceeds of the sale.

The court also ordered the creditor to pay $20,000 in costs to the wife.

Image courtesy of heinzremyschindler.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.