Adding a child to title is one of the more popular real estate transactions in Ontario, especially among elderly parents who want to reduce the probate tax burden on their intended heirs by facilitating a transfer outside their estate after death.
But joint tenancy is also an increasingly common source of real estate litigation involving parents who change their mind after falling out with a child over the control, maintenance or sale of jointly held property that was once theirs alone.
Rule 14.05(3) of Ontario’s Rules of Civil Procedure sets out the circumstances when a matter can proceed by way of application, allowing the judge to decide a discrete issue or potentially even the entire case based entirely on a paper record and oral arguments, without hearing from any live witnesses.
In the appropriate case, this allows the parties to circumvent some of the worst aspects of litigation: the costs and scheduling delays associated with discoveries and a full trial.
However, the process is not without risks. Judges retain the ability to convert an application into an action, which means that you could end up right back where you started if the court concludes that further evidence is required.
Entering into a legal agreement with your co-owner(s) to put everything in writing is strongly encouraged. It will assist with resolving disputes with the property later. Even if you don’t have an agreement in writing, a lawyer experienced in handling property disputes can negotiate a settlement without having to litigate.