Court Considers Non-Urgent Sale Of Family Home

The matrimonial home is often one of the most valuable assets a family has. What happens to it after a divorce or separation can sometimes be a cause of conflict. In most circumstances the matrimonial home will be sold to a third party, or one party will buy out the other party’s interest in the home. In a recent case before the Ontario Superior Court of Justice, the wife brought a motion on an urgent basis seeking an order granting her sole possession of the house as well as its immediate partition and sale. The motion was brought prior to a case conference which had already been scheduled.

Background

The couple were together for about five years, and began to live together on March 27. 2013. They were married on December 19, 2013. They separated after a little more than four years. They had no children of the marriage, though they did each have adult children from previous relationships. The wife earned more than the husband, but each of them had jobs with six-figure salaries. They had two properties together. The first was the matrimonial home, and the second was a cottage which they still shared at the time of the hearing.

Each of the parties alleged the other partook in controlling and erratic behaviour. They also each alleged the other drank alcohol to excess. No objective evidence was presented to establish either claim.

The wife told the husband she wanted to separate while she was away for a seven-week management training course in the United States. He did not share in her desire to do so and was bitter and upset about the decision. He admitted to taking it badly in comments to her and her family, though the wife claim he went further and sabotaged parts of the home, including the security and water systems. In addition to the requests for orders around the possession and sale of the home, the wife also sought a restraining order against the husband.

Following the separation the couple agreed to continue sharing the home by alternating time in it, but the husband moved out on August 26, 2018, living in the cottage for three months before renting his own apartment. They have been discussing selling the home but have not agreed on the terms of the sale.

Hearing a motion before a case conference

The court found that the wife had little genuine claim to immediate urgency or hardship, which would ordinarily be required to hear the motion before the case conference.  The requirement to hold a case conference before motions is established by Rule 14(4) of the Province’s Family Law Rules. The court explained that Rule 14(4) only fails to apply “if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.”

A matter of urgency

The wife’s first argument was that her situation was one of urgency. The court was presented with a number of emails and texts where the husband spoke negatively about the wife, threatened to kill himself, and complained about the unfairness and expense of the divorce. This was all in addition to her allegation that he sabotaged the home. The husband also alleged the wife acted violently towards him while denying allegations of sabotage. He said he pursued counseling after his threat to kill himself.

The court considered the evidence before it and was not convinced the matter presented a situation of urgency. It explained its reasons as follows,

1. The wife’s application does not request a restraining order, even though it was issued on August 1, 2018, close to the time of the husband’s most concerning emails.
2. In fact, that application refers to substantially the same grounds that the wife now relies on in support of her claims to urgency and a restraining order. Her pleadings refer to the husband’s alleged aggressiveness, unreasonableness, intimidation, emotional bullying, instability, suicide threats, excessive drinking, and his communications to her regarding his slight control of his anger management. Yet the only remedy she sought was exclusive possession of the Home.
3. Even so, on August 29, 2018, the wife’s lawyer wrote to the husband’s lawyer to state that she was no longer even seeking the remedy of exclusive possession of the Home. From the evidence that I have reviewed, she did not revive her request for exclusive possession or seek a restraining order until she brought this motion on October 16, 2018.
4.  Despite her pleaded concerns, the wife did not bring her allegedly urgent motion for almost three months after commencing this proceeding.
5.  The husband is nonetheless willing to accede to her request for exclusive possession of that home. That remedy gives legal teeth to his assurance that he will not re-attend at the Home.
6. When the wife changed the security codes on the matrimonial home on September 22, 2018, she communicated them to the husband. The provision of those security codes was confirmed in a letter from (her lawyer) of October 1, 2018, just over two weeks before the wife brought this motion.
7. The wife did not feel constrained enough by her alleged fear of the husband that she refrained from communicating frequently with the husband about matrimonial issues. On September 23, 2018 (his lawyer) complained to (her lawyer) about the wife’s allegedly incessant, aggressive and harassing emails. She stated that there is no reason for the parties to communicate with each other without their lawyers. She threatened to call the police on the wife. This, of course is not evidence of anything but the husband’s lack of desire at the time to communicate with the wife.
8. The wife offers no evidence of the husband communicating with her since (his lawyer’s) September 23, 2018 letter. She does not dispute that the husband had not communicated with her for about two months before this motion was heard. But it belies her claims of harassment.
9. The evidence before me shows that the most troubling behavior of the husband occurred in the weeks immediately following his involuntary separation form the wife. But at the time the wife was not concerned enough about that behavior to request a restraining order.
10. The evidence that the wife offers of the husband tampering with either that water or home security system is very ambiguous at best. It is far from persuasive, particularly in the face of opposing affidavits.
11. Finally, and to put it bluntly, despite claiming to fear the husband, the focus of the wife’s materials and her argument of this motion was the sale of the Home rather than the restraining order.

Selling the home in the interests of justice

The wife’s secondary argument was that there was no point in delaying the sale of the home since both of the parties agreed it should be sold. The court was not able to find any case law dealing with non-urgent motions that were pursued in the interest of justice. Nevertheless, the court found the case before it was unusual in its circumstances and ordered the sale of the home for the following reasons:

1. The wife has a prima facie right to partition and sale of the Home.
2. The husband’s answer contains an admission of his motivations regarding partition and sale of the Home.
3. The husband has been unable to prove that he will suffer a legally viable form of prejudice should partition and sale be Ordered.
4. The wife would be prejudiced by a delay in the sale of the Home.
5. R. 14(16)(c) exempts summary judgment motions from the operation of R. 14(4).
6. There is no point in arguing this motion again.

At Jason P. Howie we help out clients with simple and complex property and asset division. While effective negotiations often lead to an amicable arrangement, having a lawyer by your side to guide you and protect your interests is important. To speak with us about your circumstances, please reach out to us by phone at 519.973.1500 or contact us online.