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Writ Priority

Senthillmohan v. Senthillmohan 2023 Ont CA

Court directed the sale of the matrimonial home held in joint tenancy by wife and husband. Husband’s execution creditor filed a writ, husband and wife sold the home, and execution creditor agreed to temporarily lift the execution to facilitate the sale with the proceeds in trust. Wife moved to have her portion of the proceeds paid to her without payment of the execution creditor. The creditor took the position that its writ bound the interests of both husband and wife and had to be paid first in priority. The court held that it mattered not whether the wife’s interest was as a joint tenant or tenant in common, the execution binds only the execution debtor’s interest in jointly held property. Wife received her portion of the net sale proceeds without payment to the creditor.

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