Commercial Litigation and Dispute Resolution Blog

Second marriages are common. They frequently occur when one or both individuals already have adult children. Sometimes these melded families work and everyone gets along, or at least are pleasant enough to each other. Occasionally it does not go that well.  In either case, but particularly the latter, difficult legal questions can arise that should to be addressed rather than ignored. An example is the shared ownership of property and what is to happen after one or more of the property owners die. In a blended family context, this can lead to misunderstandings, hardship and ill feelings if matters have not been agreed upon from the outset.

A recent case provides something of a sad example. It ended up in court with a step-daughter seeking the sale of the home in which her deceased father and his second wife had lived. In Whieldon v. Alexander, 2018 BCSC 2119, the court was asked to invoke the provisions of the Partition of Property Act which provides that property owned by two or more people can be ordered sold. The property in question was a modest home in Mission, B.C.  Mr. Alexander purchased it after the death of his first wife. He put title into his and his adult daughter's name as joint tenants, telling her he had done so to "take care" of her after his death. She did not contribute to the purchase or upkeep of the home and never lived there. 

Sometime later, Mr. Alexander met and eventually married his second wife. They lived together in this house. At one point, Mr. Alexander asked his daughter to transfer her interest in the home to his new wife.  She declined to do so. Mr. Alexander then put his second wife on title as a joint tenant to his ½ interest but took no further steps. Several years later he died after a lengthy illness, resulting in his second wife and adult daughter becoming joint owners, as tenants in common, of the home in which the widow now lived alone.

It is fairly clear that the second wife and daughter did not get along, each accusing the other of treating them "unfairly and in contempt". Perhaps because of that, the daughter commenced a legal proceeding seeking to sell the home and get ½ the proceeds. The widow argued she could not afford to live elsewhere and that the home should not be sold given the daughter's poor conduct toward her and her father, who she never visited during his illness. In the course of ruling that the home was to be sold, the court made a number of interesting points that underscore the legal rights and obligations in cases like this. 

To begin, anyone owning an interest in land can seek to have the court order that it be sold. If you own an interest equivalent to 50% or more, then the legislation mandates that the property must be sold unless the court is persuaded there is "good reason to the contrary". This is an inquiry made by the court "having regard to the evidence adduced". It is not a question that requires any one party to discharge an onus of proof to establish there is or is not "good reason" to sell.

Hardship caused by a sale can amount to "good reason" not to sell, but generally only where there are existing legal, and perhaps moral, obligations between the joint property owners. For example, courts have denied a sale where it would see a single mother and her children lose their home. A father's legal obligation to provide for his family amounts to "good reason" not to sell. 

However, in this particular case, there were no legal or moral obligations between the daughter and her step-mother. The daughter was not legally or morally obliged to support or to house her step-mother. The court also noted that the daughter was not required by law to be nice, stating:

The law does not require the petitioner to speak to the respondent directly, to acknowledge her on social occasions, or to forego benefiting from the petitioner’s interest in the Property for the sake of the respondent.

The court was unable and unwilling to resolve the evidentiary conflict over which of the two had behaved most poorly to the other over the years. The court found this conflict to be irrelevant.  Instead, the court noted that the deceased had not taken any steps in his lifetime to make other arrangements concerning the home. Based on that, he must be taken to have intended to gift a ½ interest in the home to his daughter. The daughter's 50% interest entitled her in the first instance to an order for sale. The court could not find "good reason" not to sell the property.

If you are a joint property owner, the take away is that you should address with your co-owners what is to occur on the death of any one of you rather than leave it for the courts to sort out later. If the courts do so, this will likely lead to greater costs, irreparably damaged relationships and unwanted and regrettable consequences to at least some of the parties.