Law360 Canada (June 4, 2026, 12:01 PM EDT) --

Balvinder Kumar

Ross v. Luypaert is another interesting case from the Court of Appeal in Ontario. In this case, the two daughters of John Douglas Ross and Regine Ross, Yonna and Lorraine, are the litigation guardians of their incapable parents. The parents owned a property (Property A) jointly with their son, Rene Luypaert. Regine Ross solely owned another property (Property B), which was occupied by their son.

The daughters approached the son for sale of Property A and to vacate Property B so they could fund the continued care of their parents. The son did not agree. The daughters moved an application under s. 3 of the Partition Act, R.S.O. 1990, c. P.4, Ontario, seeking the partition or sale of Property A and a writ of possession for Property B. The application judge ordered in favour of the daughters. The son appealed the decision of the application judge on the grounds of procedural fairness and on questions of fact (Ross (Litigation guardian of) v. Luypaert, 2025 ONCA 236).

There were four grounds of this appeal:

1) The application was procedurally unfair;
2) The application judge failed to apply the correct legal principles and inappropriate factors were considered in granting partition and sale;
3) There was an error in granting writ of possession for Property B; and
4) There was an error in accepting the powers of attorney and the incapacity of the respondents as valid.

Before going into the details of the appeal case, it is necessary to understand the relevant sections of the Partition Act, who can be compelled to make partition or sale of a property, and who can bring an action or make an application for partition or sale. What does the Partition Act say?

According to s. 2 of the Act and the relevant portion of this section, all joint tenants, tenants in common, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.

Section 3 of the Act states who may bring action or make application for partition. According to s. 3(1), any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.

Section 7 of the Act states that an appeal lies to the Divisional Court from any order made under this Act.

The Appeal Court proceeded, meticulously addressing each issue of the case.

In deciding the preliminary issue of court’s jurisdiction to hear the appeal, the court relied on Billimoria v. Mistry, 2022 ONCA 276. It held that, although appeals from orders made under the Partition Act lie to the Division Court (s. 7), an appeal from a final judgment determining ownership of property lies to this court, which has jurisdiction to deal with all issues on the appeal pursuant to s. 6(2) of the Courts of Justice Act, R.S.O. 1990 c. C.43. The court further held that it had jurisdiction over the appeal regarding the writs of possession on Property B, and concluded that s. 6(2) of the Courts of Justice Act also gives the Court of Appeal jurisdiction to hear the appeal against the order under the Partition Act relating to Property A.

Another issue before the appellate court was whether the refusal to grant an adjournment to the son resulted in procedural unfairness. The court disagreed, holding that the discretion to grant or refuse an adjournment rests with the application judge and that appellate courts should be reluctant to intervene. After considering the case law and the vulnerability of a self-represented party — the son described himself as a landlord and real estate investor who had fired his formal counsel — the court concluded that the refusal to grant an adjournment did not constitute unfairness and revealed no error.

The son argued before the application judge that he is the beneficial owner of the entire interest in the jointly owned Property A. He further stated that although his parents appear on title, they are only bare trustees. However, he did not present any evidence to confirm the bare trust arrangement. The application judge had ordered that the parents were entitled to move for partition and sale. By ordering that all the sale proceeds be deposited into court, the application judge preserved the son’s right to distribution of the proceeds of the sale. As such, the application judge did not err in awarding this relief under the Partition Act.

Regarding, writ of possession, Regine Ross solely owned Property B. The son confirmed he was the only occupant of the property and there was no tenancy agreement. In the absence of any tenancy agreement, the son had no right to stay there or occupying the property. The son also challenged the parents’ power of attorney alleging that they were obtained on false testimony. No evidence to support this allegation was filed. As such, the application judge did not err in awarding writs of possession and in refusing the challenge of the powers of attorney.

The son’s appeal was dismissed.

To summarize, the Partition Act allows a co-owner of a property to force the division or sale of a property when the co-owners are in disagreement over their share or interest in the property. It is always important to have written agreements between the parties to establish their arrangements.

Balvinder Kumar practises real estate law (residential and commercial) and is a freelance writer and author with LexisNexis.

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