This guide explains the Partition and Sale Act Ontario, how a partition and sale application works, when Ontario courts grant an order for partition and sale, and how parties may attempt to resist partition and sale. It is written to answer the most common questions asked by property co-owners and to address the key legal issues arising in a partition and sale of property.

At McMackin Law, we represent clients across Ontario in partition and sale applications involving homes, estates, cottages, and investment properties.

Partition and sale is a statutory remedy under the Partition and Sale Act that allows a co-owner of property to bring an application for partition and sale when owners cannot agree on what to do with jointly owned land. In most cases, Ontario courts order the sale of the property rather than a physical division.

The purpose of partition and sale is to allow a co-owner to exit shared ownership and receive their share of the property’s value.

An application for partition and sale Ontario is a court proceeding in the Ontario Superior Court of Justice under the Partition and Sale Act Ontario. Through a partition and sale application, a co-owner asks the court to make an order for partition and sale directing that the property be sold and the proceeds divided.

Under the Partition and Sale Act, a partition and sale application Ontario may be brought by any person with a legal or equitable interest in land, including:
• Joint tenants
• Tenants in common
• Estate trustees or beneficiaries
• Mortgagees or other interest holders

Partition and sale tenants in common Ontario applications are especially common where one owner occupies the property or refuses to sell.

Ontario courts will generally grant an order of partition and sale Ontario where:
• The applicant proves an ownership interest
• The co-owners cannot agree on the future of the property
• No binding agreement restricts sale

Once ownership is established, the right to an order for partition and sale is prima facie. The burden shifts to the responding party to justify refusing or delaying the order.

Typically, an ownership interest is easily provable as transfer documents which lawyers can easily obtain will show whether the co-owners are joint tenants, tenants in common and their applicable percentage ownership.

Brienza v. Brienza, 2014 ONSC 6942  <https://canlii.ca/t/gfgt2>

In Brienza v. Brienza, the Ontario Superior Court confirmed that partition and sale is the default remedy under the Partition and Sale Act. The court held that personal preference, emotional attachment, or financial inconvenience are not sufficient to defeat a partition and sale application.

Ross v. Luypaert, 2025 ONCA 236 <https://canlii.ca/t/kb8v9>

In Ross v. Luypaert, the Ontario Court of Appeal reaffirmed that the right to partition and sale under the Partition and Sale Act Ontario is strong and presumptive. The Court confirmed that an application for partition and sale may only be refused where it is brought in malicious, vexatious, or oppressive circumstances.

The general procedure for obtaining an order for a Partition and Sale in Ontario is as follows:

1. Send a Demand letter. Almost always this is the first step as you also want to have written correspondence from counsel showing you took steps to resolve this prior to bringing an application for partition and sale in Ontario as this can affect your success in claiming costs later.
2. If no agreement can be reached then the next step is typically to prepare a Notice of Application. Often at these times we will also prepare an Application Record which will usually include at least an Affidavit from the person seeking partition and sale, notice of application and draft order, Factum, Book of Authorities and Draft Order while contacting the courts to obtain a date for the hearing.
3. File the Notice of Application and Application Record which depending on which Court the matter is being brought in will often include the date of the hearing.
4. Retain a Process Server to personally serve the Notice of Application / Application Record.
5. The resisting party may thereafter serve responding materials including a Notice of Appearance, Responding Affidavit etc.
6. Cross Examinations on Affidavits may occur if there are contentious issues and one of the parties requests this. This is typically an expensive step as court reporters need to be obtained (the going rate of a court reporter is approximately $700.00), transcripts will likely need to be ordered (often exceeds $1,000.00) etc.
7. Factums are served and filed in advance of the hearing in accordance with the Rules of Civil Procedure. Typically to avoid in argument that an adjournment is needed these will be served well in advance and not in the short timelines provided for in the Rules of Civil Procedure.
8. Attend the hearing and prepare a cost outline / bill of costs. Generally, the successful party will want to seek costs on either a partial, substantial or full indemnity basis depending on the scenario.

After an order for partition and sale Ontario is granted, the court may:
• Appoint a listing agent or referee
• Set listing terms and pricing parameters
• Control offer acceptance
• Direct how sale proceeds are held and distributed
• Address claims for expenses or occupation rent

Many clients ask how to resist partition and sale. Resisting a partition and sale application Ontario is difficult and permitted only in limited circumstances. To successfully resist partition and sale, the responding party must usually show:
• Malicious, vexatious, or oppressive conduct
• A binding co-ownership or trust agreement restricting sale
• Exceptional circumstances justifying temporary delay

A desire to remain in the property or to wait for improved market conditions is highly unlikely to defeat a partition and sale application.

Can a co-owner force a partition and sale of property in Ontario?
Yes. Under the Partition and Sale Act Ontario, any co-owner may bring an application for partition and sale.

Is partition and sale available for tenants in common in Ontario?
Yes. Partition and sale tenants in common Ontario applications are common and routinely granted.

Can the court refuse an order for partition and sale?
Yes, but only in rare cases involving malicious, vexatious, or oppressive conduct or binding legal agreements.

Cost of Partition and Sale Applications?

The cost of partition and sale applications varies from case to case depending on the amount of steps involved, how confrontational the matter is and the steps the opposing party or parties take.

Often, where a partition application is required it’s due to the party not agreeing to sell the subject property being unreasonable. Just because you get an order to sell the subject property that doesn’t necessarily solve the issue if you still require a resisting party’s signature, authority to decide price etc. as they can intentionally interfere requiring further court appearances.

Some examples of this are as follows:

• A resisting party requesting a listing price that is so egregious it drives traffic away from the property.
• A resisting party refuses to accept reasonable offers.
• A resisting party ignores realtor advice.

Often the Key in Succeeding in a Partition Application in Ontario is to also include language in the draft order that provides some format for controlling the sale process and / or requests the presiding Judge provide a mechanism in the alternative and addressing any division of proceeds in the Order especially where an unequal distribution is sought.

Partition and sale disputes involve high-value property and complex legal issues. McMackin Law provides experienced, Ontario-focused representation in partition and sale applications.

If you are considering a partition and sale application or need to respond to an application for partition and sale Ontario, contact McMackin Law for trusted legal advice.

McMackin Law is proud to serve clients across Ontario including residents of Pickering, Ajax, Whitby, Oshawa, Courtice, Bowmanville, Newcastle, Port Hope, Cobourg, Brighton, Toronto, Mississauga, Oakville, Milton, Newmarket, Aurora, Markham, Brampton, Vaughan, King, Etobicoke, Burlington, Guelph, Kitchener, Waterloo, Cambridge, Hamilton, London, Brantford and surrounding areas. 

For more information please contact us today either by phone at (647) 451-3232 or by filling in the form below.