1.2: Purpose and intention of these rules
1.3: General authority of the Court to provide remedies
9.2: Preparation of judgments and orders

Case Summary

The Applicant, Thelma Smilley (“Ms. Smilley”), applied to for an Order to sever her and the Respondent, Brian McMillan (“Mr. McMillan”)’s joint tenancy ownership of their home (the “Application”). Ms. Smilley and Mr. McMillan were adult interdependent partners who began their common-law relationship in 1997 and separated in early October of 2018. During their relationship, the parties purchased a residential property in Grande Prairie, Alberta (the “Property”), which they held in joint tenancy.

Ms. Smilley told Mr. McMillan in early October of 2018 that she wanted to end their relationship and had since revised her will. She then brought an Application so that no part of her estate would be left to Mr. McMillan. Mr. McMillian resisted the Application, arguing that the Court did not have the jurisdiction to grant the Order.

At issue was whether the Court had the jurisdiction to grant the requested Order of severance. Justice Hall found that Rule 1.2 outlines that the purpose of the Rules are to provide a means by which claims can be fairly and justly resolved in a timely and cost-effective way. Hall J. emphasized that Rule 1.3 grants the Court jurisdiction to give any relief or remedy described or referred to in the Judicature Act, RSA 2000, c J-2 9 (the “Judicature Act”). Justice Hall further noted that section 8 of the Judicature Act grants the Court general jurisdiction to grant remedies subject to reasonable terms and conditions, so as to avoid, if possible, multiple proceedings and to ensure that all matters between the parties are completely determined.

After reviewing the relevant jurisprudence on the distinctions between joint tenancy and tenancy in common, His Lordship found that a joint tenancy may be converted to a tenancy in common by a process known as severance which can be affected both at common law and under statute. Hall J. concluded by finding that the joint tenancy was severed, and pursuant to Rule 9.2(1), directed Ms. Smilley’s counsel to prepare a draft of the Order in accordance with His Lordship’s reasons.

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