Law360 Canada (June 8, 2026, 1:35 PM EDT) --

Ray Mikkola

A decision of the Ontario Superior Court of Justice a few years ago in Simone v. 1312733 Ontario Inc., 2019 ONSC 4420 (appeal dismissed by Divisional Court at 2020 ONSC 6546) set out some important principles to be applied when seeking an order for partition under the Partition Act, R.S.O. 1990, c. P.4. In particular, the court in Simone addressed the circumstances in which an order may be obtained for the partition of property instead of its sale and payment of sale proceeds to the co-owners (for a more detailed analysis of this case, see Partition orders are rare, for good reason).

More recently, these issues were examined in Reid v. Maynard, 2025 ONSC 62, in which the Superior Court of Justice ordered the partition of a property. An analysis of the court’s reasoning against the ratio in Simone sheds light on the manner in which the resolution of disputes between, or among, co-owners available by means of a partition order under the Partition Act are constrained by the same subdivision prohibitions applicable to voluntary conveyances.

In Simone, the court refused to issue an order partitioning vacant land that was slated for development where the respondent co-owner did not have the consent of the Land Division Committee authorizing the creation of the proposed partitioned property in hand. A request for an adjournment in order for the responding party to apply to the Land Division Committee for a consent to sever was denied, and the court ordered a sale of the entire property, in view of s. 50(20) of the Planning Act, R.S.O. 1990, c. P.13, which provides as follows:



This provision operates to render any order for partition to be without legal effect in circumstances where the land could not be conveyed voluntarily without offending the prohibition on subdividing land without planning authority, and therefore the court held that the respondent’s proposed partition application was “untenable at law.”

In Reid, the applicant co-owner likewise attended the court hearing without having obtained a consent to sever, but the court ordered a partition of land along a boundary proposed by the applicant’s surveyor. But the facts of each case are markedly different. In Reid, the land comprised a recreational property, parts of which had been improved by a cottage, as well as a second more recently constructed cottage that was separately accessed by the applicant and that the applicant occupied exclusively. The ownership of the lands was restricted to family members only pursuant to an agreement that set out cost-sharing obligations among co-owners, as well as other restrictions and requirements, among them that any transfer of ownership interests required the unanimous consent of all co-owners.

The current two co-owners had acquired all of the ownership interests from numerous other family members such that they were the only remaining co-owners of the lands, albeit in different co-ownership interests. The agreement contemplated that the owners would remain as co-owners of the lands in their entirety, although it did not expressly contract out of their right to apply for partition under the Partition Act. Surprisingly, despite the litigation, both co-owners were satisfied that the family ownership agreement should survive any partition of the property. The applicant co-owner wished to ensure that she could leave the ownership of “her cottage” (including its associated lands) to her children without worrying about liabilities to renters of the lands and the other cottage of the other co-owner.

The court was influenced by the “long-standing use” of discrete areas of the lands by each of the co-owners. The court acknowledged that the new property line and the continuing operation of the co-ownership agreement could result in “some uncertainty” and “inconvenience” in the “medium term,” which the parties would work out between them. The court held that the partition order would have the practical effect of recognizing the status quo regarding the separate use and occupation of the cottages and docks.

The fact that the applicant had previously successfully argued against an application for the partition of part of the lands brought long ago by another co-owner family member at a time when there were more than two remaining co-owners was not, in the view of the court, relevant.

How can these cases be reconciled?

It appears that the court in Reid accepted that the prospect of obtaining a consent to sever was likely, whereas in Simone, the respondent did not show any evidence in this regard and hoped to obtain such evidence and therefore required the adjournment of the application hearing for such purpose. The applicant presented evidence that the proposed partition would not conform to the municipality’s official plan policies or the prevailing zoning requirement. Accepting such evidence, the court found that even if it were prepared to grant the adjournment, the possibility of obtaining a favourable consent decision is “uncertain and remote.”

Importantly, the court in Reid found that the only consent-related evidence was from the applicant’s surveyor. The boundary proposed by the surveyor reflected the extent of the fractional interests of the co-owners in the lands and was consistent with their actual separate occupation of parts of the lands. Neither of these considerations would presumably be accepted by the Land Division Committee as a sufficient reason on their own to issue the consent. But the surveyor’s evidence in court was that he believed that the local municipality “may favourably consider” the applicant’s consent application, and the court noted that the respondent did not cross-examine the surveyor or refute his evidence.

Rather than demonstrate that the consent would be obtained, the court held that there was no evidence that such a consent could not be obtained. Unlike the court in Simone, the court found that s. 50(20) of the Planning Act does not prevent the court from making an order for partition, although it does require that such order “should make it clear that it is subject to municipal approval.”

It is important to note that Reid does not find fault with the ratio in Simone or hold that it is no longer good law. However, the decision in Reid may stand for the proposition that an applicant for a partition order does not require the applicant to attend the court hearing with the Land Division Committee consent in hand. In Reid, the judge noted that the applicant had represented that she would apply for a consent to sever once the order is issued, and that the validity of the partition would be left to the Land Division Committee. It therefore appears that at least some evidence that a consent may be available on application to the Land Division Committee must be proffered by an applicant for a partition order, and that there should not be more compelling evidence that no such consent would likely be obtainable. In those circumstances, Reid is authority for the proposition that a mere indication that an applicant for a partition order would apply to the Land Division Committee for a consent to sever can be sufficient for the issuance of a partition order, although conditioned on the actual issuance of the consent to sever.

Ted Evangelidis, head of the litigation practice at Pallett Valo LLP and the lawyer who successfully argued the matter in Simone, is of the view that the decisions are not as inconsistent as they initially appear. “An applicant who attends a hearing under the Partition Act who is able to show that a conveyance of the proposed land to be partitioned would not offend the subdivision prohibition provisions of the Planning Act as required by s. 50(20) of the Planning Act, such as by obtaining a consent to sever, might be successful in obtaining a partition order. Nothing in Reid would assist a party to obtain such an order where this is not the case,” said Evangelidis.

Of course, the mere obtaining of a favourable decision of the Land Division Committee in any event may not be sufficient to support an order for partition. Typically, such consent decisions are subject to the applicant satisfying conditions of severance, such as conducting studies, retaining expert reports and entering into municipal agreements, all to the satisfaction of the municipality. A consent approval that is subject to the satisfaction of conditions is referred to in the Planning Act as merely a provisional consent. The agreements may need to be registered on title to the property with the postponement of all registered mortgagees. The failure to obtain such satisfactory studies and reports, or to obtain and register postponements from mortgagees, and to satisfy all conditions of the provisional consent, within the stipulated time to satisfy such conditions means that the consent would be deemed to have been refused. An applicant for a partition order would therefore be wise to obtain clear evidence that a consent would issue, preferably without any conditions, or that such conditions could be satisfied easily. Even if an order for partition is issued and registered, a careful purchaser’s lawyer would be wise to confirm that the subdivision prohibition provisions had been satisfied, given that in the absence of such satisfaction, the order has “no effect in law.”

Ultimately, the decision in Reid demonstrates that an applicant for a partition order may be successful where there is adequate evidence that a consent to sever would be available, despite no such application having been made. Although the court accepted the evidence of the applicant’s surveyor in Reid, such evidence should be from a planner or other planning professional. A better option might be to apply for the severance (if possible) prior to the hearing, so that matters such as the satisfaction of any known conditions, questions as to which party should bear the costs of satisfaction of the conditions, and resolving any non-cooperation by any other co-owner(s) with the consent application, among other issues, may conveniently be addressed by the court.

Ray Mikkola is a partner with the firm of Pallett Valo LLP. 

The author would like to thank Ted Evangelidis for his assistance with this article.
 
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