Besides the numerous statutes, regulations, and rules dealing specifically with family law, family lawyers need to be acquainted with some legislation of general application that we may not think of in connection with a family law case. This article is a brief introduction to the Partition Act, RSO 1990, c P.4.
Partition Act, R.S.O. 1990, c. P.4
The Partition Act comes into play when a co-owner of real property (whether a joint tenant or a tenant in common) wants an order for the property to be partitioned or sold, so that they can recover their equity, and the other co-owner does not agree. An order for partition or sale can also be brought by a mortgagee or other third party with an interest in the property.
The Partition Act applies only to property in Ontario: Spagnola v. Romanelli, 2021 ONSC 4236. The reason is that the courts may not make in rem orders concerning property in a foreign jurisdiction, which includes other provinces and territories. See: Duke v. Andler, [1932] S.C.R. 734, 1932 CanLII 32 (SCC) ; Catania v. Giannattasio 174 D.L.R. (4th) 170, 118 O.A.C. 330 (C.A.).
Partition means physically dividing the property into two or more parcels. In family law cases, the Partition Act cannot be used to divide property in specie and distribute a part to each spouse. It can only be used to order a sale. See: Buttar v. Buttar, 2013 ONCA 517 (the property in question was a farm).
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