In Ontario, there is no statutory protection for an unmarried partner’s interest in property that is solely in the other partner’s name. Likewise, there is no legislative authority for a judge to award the untitled partner exclusive possession of such a property. In these cases, the partner who is not on title may assert constructive trust claims, which may grant them an interest in a property.

While courts may sometimes delay enforcement of the owner’s right to possess property, in many instances, the owner can proceed with a house sale while the non-owner’s trust claim is pending. Holding a portion of the sale proceeds can protect the untitled partner’s financial interest in the property while returning the owner to their home.

Non-Titled Party Claims Interest in Property 

In Fournier v. Giannousopoulos, the parties were unmarried but, before separation, had lived together in the property owned by the applicant. After separation, the respondent continued to reside in the property, and the applicant brought a motion for an order for vacant possession and sole carriage of the sale of the property. 

Since separation, the applicant had been paying all property costs, and she argued that she could not continue to maintain the property on her own. The applicant had tried for over one year to obtain the respondent’s consent to the sale of the property, but the respondent refused to agree. Additionally, the respondent claimed a constructive trust interest in the property and argued that if the property was sold before his claims had been determined, his interests in the home would be prejudiced.

The respondent claimed that when the property was purchased, they jointly agreed that only the applicant’s name would be on title, as the respondent was unable to obtain a mortgage and had inconsistent income. He also suggested that funds contributed to the purchase by the applicant’s mother were a gift made to both of them. Additionally, the respondent alleged that he provided labour and carried out renovations to the property.  The central question was whether the respondent’s constructive trust claims to the property prevented its sale. 

No Statutory Protection for an Untitled Partner’s Interest in Property

The judge first acknowledged that in Ontario, there is no statutory protection for an unmarried partner’s interest in property that is held in the other partner’s name. In these circumstances, the partner who is not on title must rely on equitable remedies. Additionally, courts have found that the registered owners may obtain possession to sell the property, even if unresolved constructive trust claims are asserted by the non-titled party.

For instance, in Sorensen v. Ellis, the plaintiffs, who were the titled owners of the property, sought an order for the defendant to vacate the property. The plaintiffs had solely been paying the carrying costs of the home, although both parties agreed that the property needed to be sold.  However, they disagreed about what should happen to the sale proceeds. The defendant sought a 50% interest in the home, while the plaintiffs wanted half of the proceeds released to them directly. The defendant argued it would cause him harm if the plaintiffs received a 50% share of the proceeds before he did. The judge disagreed, finding that it was unlikely the defendant would be able to recover more than 50% of the proceeds if his claim was successful, and that holding half of the proceeds in trust pending the resolution of the action was fair. The judge noted that the plaintiffs owned the property and were responsible for the financing and carrying costs. It appeared that the defendant had been using his possession of the property as leverage while the plaintiffs carried the financial burden. 

Similarly, in Abdulaziz v. El Zahabi, the parties lived together, although the home was only in the applicant’s name. He sought an order requiring the respondent to vacate the home or sell it. However, the respondent alleged that the parties were married and sought equalization or a trust claim to the home. The judge found that merely asserting these claims were not sufficient to dismiss the applicant’s motion and deny the applicant the requested relief, since her claims related to her marriage status or unjust enrichment would not be prejudiced. Overall, her claims were not impacted by which party occupied the house before trial. And if the house was sold, her interests could be protected by holding a portion of the sales in trust pending the trial. 

Judge Finds Sale Would Not Prejudice the Trust Claims

In Fournier, the applicant had paid $48,280 towards the mortgage in the 17 months since separation. She was also fully responsible for the costs of utilities, property taxes, home and car insurance, internet, and the costs of the respondent’s cell phone. This amounted to $76,567 in costs she had paid since the separation. She argued that she could not continue to make these payments and that the property needed to be sold. Following the separation, she had already renewed the mortgage for an additional year due to the respondent’s difficulty moving out of the house. But the judge concluded that it would not be reasonable to require her to obtain another mortgage based on these circumstances. 

In addition to the trust claim, the respondent also alleged that the parties were engaged in a joint family venture. The applicant disputed this, pointing out that their finances were never integrated and that they never intended to operate jointly as an economic unit. She also claimed that throughout their relationship, the respondent’s contributions were inconsistent. The judge found that the respondent’s ownership interest in the property depended on the outcome of his constructive trust and joint family venture claims, which needed to be determined at trial. But, even if that claim was successful, Justice Kraft found that the remedy could be limited to a monetary award, rather than obtaining a proprietary interest in the property. The applicant argued that the sale of the property would not prejudice those claims, since the proceeds would be held in trust. The judge agreed. 

Overall, it was apparent that the applicant had attempted to negotiate with the respondent regarding the need to sell the property and that he needed to vacate it to allow the sale. But he did not cooperate, while the applicant had to solely bear the financial burden of maintaining the property. The judge was not persuaded that the sale would prejudice the respondent’s trust claims and determined the property should be listed for sale as soon as possible.

Vacant Possession and Control Over the Sale Process

The judge still had to determine when the respondent should be ordered to vacate the property. On this issue, Justice Kraft explained that unmarried partners do not have possessory rights to the parties’ home under the Family Law Act. Since the definition of “spouse” in the Act is in relation to spousal support claims, but not property claims. In this case, the applicant wanted the respondent to vacate the property in 14 days, while the respondent claimed that the short timeline was unjust. The judge agreed that it was not enough time to arrange alternative accommodation and proposed 45 days to vacate the property.

When it came to the sale of the property, the respondent claimed that there was no reason why the applicant should have sole carriage of the sale. Again, the judge disagreed, noting that the respondent had previously refused to cooperate with the applicant regarding the sale. It was also appropriate that the applicant manage the sale, as she was the sole titled owner of the property.

Contact NULaw in Toronto for Trusted Family Law Advice in Common-Law Separations

If you are involved in a property dispute with an unmarried partner or former common law partner in Ontario, issues involving constructive trust claims, unjust enrichment, joint family venture allegations, sale proceeds, vacant possession, and sole carriage of sale can become legally and financially complex.

Led by D. Lex Arbesman, the experienced family law team at NULaw can help you understand how Ontario courts approach property claims between unmarried partners, including disputes involving the family home, ownership, occupancy, and proceeds held in trust. Contact our firm online or call 416-481-5604 to schedule a consultation on your family law matter today.