Can a Common-Law Spouse Secure Their Share of a Co-Owned Property After Intestate Death?
Case Analysis: Khosravi v. Mohammadi et al, 2025 ONSC 2697
Introduction
The case of *Khosravi v. Mohammadi et al*, 2025 ONSC 2697 addresses a dispute over the estate of Mahdyar Mohammadi, who passed away intestate in November 2023. The applicant, Somayeh Khosravi, the deceased’s common-law spouse, sought partition and sale of a co-owned property, distribution of 50% of the proceeds, and reimbursement for funeral and carrying costs. The respondents, the deceased’s parents, contested the distribution and reimbursement, raising issues about Khosravi’s relationship with the deceased and alleged loans. This analysis examines the facts, applicable law, judicial reasoning, and lessons learned from the court’s decision.
The Facts
Mahdyar died unexpectedly on November 9, 2023, without a will. Khosravi, his common-law spouse, applied for a Certificate of Appointment of Estate Trustee Without a Will, as no will was found. The deceased’s parents were his next of kin and, along with Khosravi, were equal beneficiaries of his estate under intestacy rules. The primary asset in dispute was a property at 18 Frank Kelly Drive, Holland Landing, purchased by Khosravi and the deceased in 2020 for $1,215,000, held as tenants in common with each owning 50%.
Khosravi sought:
- Partition and sale of the property.
- Distribution of 50% of the sale proceeds to her, reflecting her titled ownership.
- Reimbursement for 50% of carrying costs (mortgage, property taxes, and insurance) and funeral expenses, offset by rental income from a basement apartment.
The respondents did not oppose the sale but contested the distribution of 50% of the proceeds to Khosravi, arguing that only 25% should be released due to alleged loans and disputes over Khosravi’s common-law status. They also opposed reimbursement for carrying and funeral costs. David Mills, appointed as Estate Trustee During Litigation (ETDL), did not oppose Khosravi’s motion.
The Law
The court applied several legal principles and statutory provisions:
- Partition and Sale: Under Rule 66.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, any joint tenant or tenant in common may request partition and sale of a property. The court has broad discretion to order such relief, as confirmed in cases like *Suave v. Davidson*, 2024 ONSC 2091 and *Mammoliti v. Smutniak*, 2022 ONSC 6461.
- Distribution of Proceeds: Rule 66.03 mandates that sale proceeds be paid into court unless parties agree otherwise, but courts may order distribution based on title, subject to discretion (Suave v. Davidson, para 30). Factors influencing discretion include clean hands, oppression, hardship, or vexatious proceedings (Mammoliti, para 44).
- Standing under the Partition Act: Section 3 of the Partition Act, R.S.O. 1990, c. P.4 applies to those with an immediate possessory interest in the property (Di Michele v. Di Michele, 2014 ONCA 261, paras 78-80](https://canlii.ca/t/g67z6)).
- Estate Administration: Under Section 5 of the Estate Administration Act, R.S.O. 1990, c. E.22, funeral and testamentary expenses are payable from the estate’s residuary assets.
- Occupation Rent: Only co-owners with a property interest can claim occupation rent (Rizzo v. Farruggia, 2024 ONSC 4615, para 22](https://canlii.ca/t/k6pv8)).
- Preservation of Funds: Orders restricting a party’s assets before judgment require a motion under Rule 45.02 and must meet tests for a specific fund, serious issue to be tried, and balance of convenience (Aetna Financial Services v. Feigelman, 1985 CanLII 55 (SCC)](https://canlii.ca/t/1fv1f)).
Analysis
The court, presided over by Justice Papageorgiou, granted Khosravi’s motion in full, addressing three key issues:
- Partition and Sale:
- The court found no opposition to partition and sale, and Khosravi’s 50% ownership as a tenant in common satisfied Rule 66.01(1). The order was straightforward, as both parties and the ETDL agreed on the sale.
- Distribution of 50% of Proceeds:
- Khosravi’s 50% titled ownership established a prima facie right to distribution (Suave v. Davidson). The respondents’ objections—denial of the common-law relationship, alleged loans, and claims to personal belongings—were dismissed:
- Common-Law Relationship: The court noted that Khosravi’s 50% title was undisputed, rendering her relationship status irrelevant. Evidence, including emails and photos, supported her claim of a common-law relationship, undermining the respondents’ credibility.
- Alleged Loans: Claims of loans to Khosravi ($111,650 for the downpayment and $118,149.31 for renovations) lacked documentary support. The respondents’ evidence, including a cheque written by Khosravi, was inconsistent and unconvincing. Even if valid, such claims would be unsecured debts, not grounds to withhold proceeds (Tarling Estate (Re), 2007 CanLII 3226, para 12](https://canlii.ca/t/1qfm6)).
- Loans to the Deceased: Alleged loans to the deceased ($100,000) were claims against the estate, not Khosravi’s 50% share.
- Personal Belongings: Claims to rugs and furniture were unsupported and irrelevant to distribution.
- Probate Costs: These are estate expenses, not chargeable against Khosravi’s share (Estate Administration Act).
- Occupation Rent: The respondents, as estate beneficiaries, lacked standing to claim occupation rent (Rizzo v. Farruggia).
- The court found the respondents lacked standing under the Partition Act, as they had no immediate possessory interest (Di Michele). Khosravi’s financial hardship, including reduced income due to disability, supported distribution (Suave v. Davidson).
- Reimbursement for Costs:
- Khosravi was entitled to reimbursement for funeral costs ($4,622.05) and 50% of carrying costs ($28,518.44), offset by 50% of rental income ($16,545.65), totaling $10,608.44, under Section 5 of the Estate Administration Act. The court rejected the respondents’ argument that Khosravi’s residence in the property or delay in selling negated her claim, noting that delays stemmed from the respondents’ objections.
- Costs:
- Khosravi was awarded $22,860.38 in partial indemnity costs, with $7,500 from the estate and the balance from the respondents, reflecting the motion’s necessity and the respondents’ unreasonable opposition.
Lessons Learned
- Clear Title Prevails: A co-owner’s titled interest in a property is a strong basis for partition and sale and distribution of proceeds, absent compelling equitable reasons to withhold funds (Suave v. Davidson).
- Unsupported Claims Weaken Credibility: The respondents’ inconsistent and poorly evidenced claims (e.g., loans, personal belongings) undermined their case and highlighted the importance of documentary support.
- Standing Matters: Beneficiaries of an estate lack standing to challenge partition and sale unless they have a direct possessory interest (Di Michele).
- Estate Expenses: Funeral and carrying costs are typically estate obligations, recoverable from residuary assets (Estate Administration Act).
- Court Discretion: Courts exercise broad discretion in partition proceedings, balancing equity and hardship (Mammoliti).
Conclusion
The decision in *Khosravi v. Mohammadi* underscores the primacy of titled ownership in partition and sale disputes and the importance of substantiated claims. The court’s dismissal of the respondents’ objections reflects a pragmatic approach to estate litigation, prioritizing clear legal rights and equitable considerations. For expert assistance in estates litigation, contact Bobila Walker Law, a trusted firm specializing in estate disputes.
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