Jointly Tenancy Not Severed by Divorce and Death

In Bishop (Re), 2022 ABQB 146, the Court was required to determine whether the Deceased and his former spouse had severed the joint tenancy they held over their residence. Prior to his death, the Deceased and his former spouse had never written down their intention to sever their joint tenancy which led to a legal dispute between the former spouse and the Deceased’s children from a previous relationship. 

The Deceased and former spouse lived in a common law relationship for almost 20 years, were married for 3 years before separating, and were separated for around 11 years before ultimately divorcing in 2013. The Deceased died intestate in 2014.

The Deceased and his former spouse failed to change their joint tenancy on the residence prior to the Deceased’s death. His former spouse claimed she was entitled to $100,000 of the proceeds from the sale of the residence based on her unwritten agreement with the Deceased.

The Court found the former spouse had contradictory memories regarding her separation from the Deceased and the terms of their ‘oral agreement’ relating to ownership of the residence. Following a review of the evidence, the Court found the former spouse had moved out of the residence 11 years prior, following her separation from the Deceased.

After the former spouse had moved out, the Deceased made upgrades to the residence and paid for most of them, though the former spouse provided some funds and labour. Two witnesses also provided evidence they believed the Deceased had agreed to give the former spouse $100,000 upon sale of the residence.

The Court examined the relevant law on joint tenancy, that the owners must have “the unities of title, time, interest and possession”. Citing Havlik v Whitehouse, 2000 ABQB 242, aff’d 2001 ABCA 278, and Hansen Estate v Hansen, 2012 ONCA 112, the Court noted owners can sever a joint tenancy in three ways:

• By one owner selling or encumbering their share,
• By the owners making a mutual agreement to sever the joint tenancy, and
• By the owners undertaking a sufficient course of dealing showing they mutually treated their interests as a tenancy in common.

In this case, the Court did not conclusively find a valid agreement however, following a review of the evidence, the Court found a “common intention” between the Deceased and the former spouse, which both individuals acted upon, to give the former spouse $100,000 from the residence sale.

Under the circumstances, the Court found the “common intention” sufficient evidence and ordered $100,000 from the proceeds of the sale of the residence be paid to the former spouse.