Appeal court affirms writ of possession for property owned by mother, occupied by son
The Ontario Court of Appeal has affirmed an application judge’s determination that a man failed to provide a basis to defeat his siblings’ application for the partition and sale of a property jointly owned by him and their incapable parents.
The two respondents in the case of Ross v. Luypaert, 2025 ONCA 236 were siblings of the appellant and were the litigation guardians of their incapable parents. The dispute involved two properties in Guelph:
The respondents reached out to the appellant regarding the possibility of selling the Galt property or vacating the Bristol property to fund the continued care of their parents. However, the appellant refused.
The respondents filed an application seeking the partition and sale of the Galt property and a writ of possession for the Bristol property. An application judge of the Ontario Superior Court of Justice granted the remedies requested by the respondents.
On appeal, the appellant alleged that the application was procedurally unfair. He also argued that the application judge:
The Court of Appeal for Ontario dismissed the appeal. First, the appeal court found no error in the application judge’s award of relief under Ontario’s Partition Act, 1990. The judge properly referenced the right of a property owner to apply for partition and sale under s. 3 of the Partition Act, the appeal court said.
The appellant alleged that the application judge failed to fully consider his claim of being the beneficial owner of the entire interest in the Galt property, that their parents were only bare trustees though they appeared in the property title, and that the respondents failed to bring their application with “clean hands.”
The appeal court disagreed with these arguments. It found no evidence establishing a bare trust arrangement.
The appeal court also saw no error in the application judge’s award of a writ of possession. The appeal court rejected the argument that the application judge improperly relied on the appellant’s unsworn statement about his tenancy status.
The appeal court noted that the application judge referred to this statement simply to confirm his finding, based on the record, that the property had no tenants or occupants apart from the appellant, who had no tenancy agreement.
Next, the appeal court saw no error in the application judge’s refusal of the appellant’s challenge to the status of the respondents as litigation guardians and his allegation that their powers of attorney were based on false testimony. The appeal court said that the application judge was entitled to find no evidence in support of this allegation.
Lastly, the appeal court found no error or unfairness in the application judge’s decisions to refuse an adjournment and to enforce an order in a related motion. That order prohibited the appellant from filing responding materials if he failed to do so in line with a certain timetable.
