In a recent Ontario decision, an ex-wife attempted to appeal a motion decision that ordered the sale of the woman’s former matrimonial home, in which she had continued to reside in following her separation from her former husband. Her appeal was dismissed.

What Happened?

The parties separated in 2004 after 24 years of marriage. They have four adult children. Following the separation, the wife did not claim equalization of net family property.

The parties were joint owners of a matrimonial home valued at $2.3 to $2.4 million dollars. Following the separation, the ex-wife remained in that home and the ex-husband moved out. There was no court order granting the wife exclusive possession of the matrimonial home.

The ex-husband brought a motion for sale of the matrimonial home so that he could access his equity. He requested that each party receive $500,000 from the net sale proceeds and the rest of the equity be held in trust pending a final resolution. He also requested additional relief from the ex-wife including further disclosure and an order that he pay him occupation rent from the date of separation.

The Law

The law dealing with partition and sale is clear: a joint tenant has a prima facie right to sale prior to trial. This right exists unless the other joint tenant has made claims that would be prejudiced if the property was sold.

The party that resists the application for sale should have an order for exclusive interim possession, or be able to show that the claims he or she intends to put forward at trial would be prejudiced by an immediate sale.

The Motion Decision

The motion judge ordered the sale of the matrimonial home, noting that an order for sale of the matrimonial home would be inevitable at the eventual trial and there were not dependant children.

With respect to equalization, the motion judge noted that the ex-wife had not actively pursued an equalization claim, and it was not clear whether equalization was owed to her. Since there was a significant amount of equity in the home to satisfy an equalization claim, the motion judge could see no prejudice to the ex-wife’s “potential claims” if the matrimonial home was sold.

The ex-wife appealed the sales order on the basis that the motion judge had erred in finding:

  • That the sale of the matrimonial home was inevitable;
  • That it was unclear whether equalization was owed to the wife because he had two competing affidavits before him.

The Appeal

The wife’s position on appeal was that she had provided sufficient proof that her rights would be prejudiced by the sale of the home and the payment of $500,000 to each party.

She further argued that the ex-husband had brought $800,000 with him to Canada when he applied for entry into the country under the Entrepreneur Program. She claimed that she was entitled to equalization of this money and the interest that would have accrued. If funds were advanced from the sale proceeds of the home, her claim over the $800,000 would be prejudiced.

In response, the ex-husband argued that he invested the $800,000 in a group of companies owned by the ex-wife in order to gain residency. Around the time of the ex-husband’s investment, the ex-wife received shares in her family business.

The wife provided no evidence from any of her family members to dispute the husband’s evidence about what he did with the $800,000.

The Appeal Decision

The trial judge noted that the motion judge’s decision had been correct in law and that he had made no palpable errors of fact.

The motion judge had seen no prejudice to the wife’s “potential claims” if the matrimonial home was sold. There was ample equity in the home to address any possible claim to equalization the wife would make.

In addition, the wife had provided no evidence to show that a sale would prejudice her rights- simply stating that she disagreed with the husband’s evidence about what happened to the $800,000 was not sufficient.

Furthermore, it was clear that the matrimonial home would be sold at trial if not ordered beforehand, because the parties are joint owners and the husband had a prima facie right to partition and sale.

The trial judge concluded that there was no basis for the wife’s appeal and dismissed it.

To speak with an experienced Windsor lawyer about complex property division, call Jason P. Howie at 519-973-1500 or contact us online. Many of our clients are referred to us by former and current clients, as well as by lawyers, accountants and other professionals.