In Ontario, common-law partners do not have equal rights to the family home and property division as a married couple does. This is why most cohabiting couples enter into a cohabitation agreement before moving in together. Such an agreement will dictate how the property division happens in the event of a separation. With the help of a family lawyer, they can ensure that the document is legally binding and there is no room for any future disputes. In the absence of such an agreement, such disputes are most likely to be settled in court, as happened in a recent case heard in the Ontario Superior Court of Justice.
Frank v. Martin, 2025 ONSC 1426.
In the case of Frank v. Martin, 2025 ONSC 1426, the absence of such a cohabitation agreement meant that the court had to consider the financial contributions from both parties to the home to settle the ownership dispute that arose during their separation. This is looked at for the claims of a resulting trust. The couple, both being retired doctors, had been cohabiting for 26 years as common-law partners before their separation in 2023. In such a long-term relationship, any couple would have accumulated wealth, finances, and liabilities together, making the division of property a complicated task without a proper agreement in place.
The context of the case
In this case, Cathy Frank, the Applicant, and James Martin, the Respondent, had contributed together to the purchase of the home in 2006, and it was meant to be their forever home. While the Respondent claimed that his contribution was much higher than that of the Applicant, the couple purchased the property together as joint tenants. Also, it was the Applicant, who put up the down payment of $50,000 for the property. Since the property was purchased as joint ownership, they were 50/50 owners and entitled to the presumption of equal ownership.
Unequal financial contribution to the property
However, the Respondent claimed that he covered the bulk of the payment for the purchase, including bridge financing, insurance, and property taxes on the house. The Respondent also contributed the proceeds from the sale of his condominium to the financing of this home. The remainder of the funding for the house was paid through a joint mortgage, the payments for which were made through a joint account. The Applicant had also contributed to the property, including paying for its renovation, furniture, and household items and the regular purchase of groceries and other regular household expenses. The Applicant sought to have the property sold after the breakup.
Applicant seeking the sale of the property
Citing the financial hardship brought on by the breakdown of their spousal relationship of 26 years, the Applicant had requested the court to allow the listing of the property for sale. The Respondent did not agree to sell the property and sought to have the court declare that the Respondent be entitled to full ownership of the property, meaning that if the Respondent was successful, the Respondent could get 100% of the sole proceeds of the sale if the property was sold. This would be under a resulting trust.
Respondent’s rationale for opposing the sale
The Respondent opposed this request and wished to prevent the sale of the property, arguing that due to his bigger financial contribution to the property, he has full claim over it. Alternatively, the Respondent sought the first refusal rights on the property, or an unequal division of the proceeds of the sale proportionate to his higher contribution. The Respondent claimed that the resulting sale of the home would put him through the emotional hardship of leaving the home that he loved. He would also have to make arrangements for alternative housing.
Applicant’s request for spousal support
Again, citing the financial hardship brought on by the separation, the Applicant also sought spousal support from the Respondent. The Respondent claimed that the Applicant has sufficient financial assets and means of income, and therefore, there was no requirement of spousal support from him.
Why did the court rule in favour of the Applicant?
In the end, the court ruled in favour of the Applicant, pointing out the following.
- The Applicant is a joint tenant and, therefore, has the presumptive right to seek the sale or partition of the property.
- The Respondent’s argument that the sale would force him to leave the home he loved was not accepted by the court as sufficient grounds to overcome the other joint tenant’s right to sell the property.
- The Respondent can easily find alternative housing and has the financial means to do so.
- The court does not have jurisdiction to impose the first right of refusal on property in favour of either party. After listing, either party may offer to buy out the other’s interest at fair market value and purchase it if accepted.
- The court ordered that the property be listed for sale and that both parties cooperate in ensuring a smooth process of sale.
- The court rejected the Respondent’s claim that he had full ownership of the property due to his claims of more financial contributions.
- The court observed that the couple had cohabited together for 26 years, and now, there is a significant decrease in the standard of living of the Applicant because of the separation. Under the Family Law, this means that the Applicant is entitled to either temporary or permanent spousal support.
- The Applicant, being well over the age of 65, is no longer working and retired from practicing medicine, having given up her license.
- The Respondent, on the other hand, is in a comfortable position financially. Under the Spousal Support Guidelines, the Respondent is therefore required to pay spousal support to the Applicant in the amount of $6029.00 per month on an interim basis.
The court, therefore, ruled in favour of the Applicant on both matters. The court also stated that if the Respondent did not cooperate with the sale, the Applicant may still proceed with the sale as per the terms of the judgment.
How can our family lawyer help you in such cases?
This ruling clearly demonstrates the importance of executing a legally binding cohabitation agreement before you move in with your partner. This is especially important in relationships where one party is contributing more to the wealth of their partner. Our experienced family lawyers can help draft a cohabitation agreement that is fair to both parties and is legally binding in the event of a separation. If you are going through a separation without a cohabitation agreement, our legal team will fight on your behalf to ensure that your financial interests are protected. Reach out to our legal team today at 905-405-0199 for a consultation.
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