Michael Ford (post until Oct. 31/19)
Family

Like it or not: forcing the sale of the matrimonial home

By Lisa Gelman

The court recently examined the interesting question of whether, and under what circumstances, a party can obtain an order to sell their matrimonial home even when their spouse opposes the sale.

The parties’ story

The parties were married in 1979, separated and reconciled in 2009 and 2014, and separated for a final time in June 2017. They had two adult children.

In August 2017, the wife commenced an application for a divorce, among other relief.

In May 2018, the wife entered into an agreement of purchase and sale to buy a condominium. She made a deposit of $50,000 and had yet to pay the remaining balance of $1,200,000. According to the wife, finding safe accommodation was important to her because the husband, who was incarcerated in Florida, expected to return to Ontario by the end of 2018.

The wife subsequently brought a notice of motion in which she sought to sell the parties’ jointly-owned matrimonial home without the husband’s consent. The wife also requested that she receive all of the proceeds of the sale of the house.

The relevant legal principles

The court began its analysis by outlining that a joint owner has a prima facie (i.e., presumed) right to an order for partition and sale. It noted, however, that an order pursuant to s. 2 of the Partition Act should not proceed where it would prejudice the rights of either spouse under the Family Law Act.

The court explained that there are three criteria that it must consider when determining if “prejudice” exists in any given case:

  • whether assets will be depleted, preventing an equalization payment;
  • whether a child living in the home will suffer harm if forced to move; and
  • whether the applicant joint owner has demonstrated malicious, vexatious or oppressive conduct.

Sale of the matrimonial home

The court found that selling the matrimonial home would not prejudice the husband and granted the wife’s motion.

In reaching this disposition, the court concluded that, on the record before it, there were no children living in the matrimonial home and the wife had not demonstrated malicious, vexatious or oppressive conduct. The court also found that the sale of the parties’ home would not prejudice the husband by depleting or preventing an equalization payment, as based on preliminary figures, the husband owed the wife an equalization payment of approximately $2,300,000.

The court rejected the husband’s submission that it could order his financial institution to pay the wife $1,200,000 (rather than sell the matrimonial home) so that she could close on her purchase of the condominium. In doing so, the court noted that:

  • The law is clear that the wife had a prima facie right to an order for sale, and there was no evidence that the husband would be prejudiced.
  • The husband expressed a desire to live in the matrimonial home when he returned from the United States. However, that was unrealistic, as the husband was subject to a three-year probation order that prohibited him from being within 300 metres of the home. [While a variation order was possible if the husband was not living in the home, it would only occur after a formal motion to the Ontario Court of Justice, which could not be undertaken before the husband returned.]
  • While the husband might have had an emotional attachment to the matrimonial home, that did not have an impact on whether the wife had a prima facie right to an order for sale of the home.

Although the wife asked for an order releasing the entire net proceeds of sale to her (with the husband’s share being credited to him as an advance on equalization), in granting the wife’s motion, the court awarded her only 50 per cent of the net proceeds of sale. It noted that the husband needed to be given an opportunity to provide the disclosure and the expert valuation reports that would assist in arriving at a final equalization payment, and that he should not have to lose his half of the equity in the former matrimonial home in the meantime.

Lessons learned

There are a number of factors the court must consider when determining whether to grant one spouse’s request to sell the matrimonial home against the wishes of the other spouse.

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