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Not all separations or divorces start out with high conflict and litigation. In fact, in some cases, a couple can separate and never decide to pursue divorce. Of course, even a formally married couple can sometimes get along or simply part ways without involving lawyers or the courts.
However, a recent Ontario Superior Court of Justice decision shows that even if divorce isn’t pursued, it is still beneficial for the parties involved to come to terms on important items such as marital property through a separation agreement.
Couple separates but wife stays in home for eight years
The parties involved were married in May 1991. They had two children, both adults aged 27 and 29, respectively, before they separated. The parties separated, though there is a significant gap in when each believes the separation occurred. The husband says the date of separation was March 2014, while the wife says it was January 2008.
Following the separation, the husband moved out of the home, and the wife has had exclusive access to it ever since. The home is jointly owned by the parties and has not mortgage or encumbrances registered against it.
As of the date of the trial, the parties were each 69 years old. The husband is self-employed and earns about $65,000 annually. He plans to retire in January. The wife is a Registered Practical Nurse and makes a similar income as the husband. She has no immediate plans to retire (at least none that were shared with the court) and has a pension plan through her employer. The husband does not have similar savings.
Following their separation, the husband did not mention his desire to sell the home but brought it up in 2018 and has not asked the court to order it to be sold. Meanwhile, the wife brought a cross-motion seeking interim exclusive possession of it and opposed the request for an order for sale.
Husband says he needs income from sale for his retirement
The husband has asked the court to order the partition and sale of the jointly owned matrimonial home. He says the wife has not established any valid grounds to oppose the sale. The husband’s application also stated that he does not owe the wife an equalization payment, nor do they have any other significant assets that require liquidation.
The husband’s stated need to sell the home stems from his planned retirement. He told the court that since he has no pension, he needs to realize his equity in the home to fund his retirement. It was the husband’s position that the wife’s request for exclusive possession is not needed since she has had exclusive possession since moving out of the house.
The wife stated that she resists the sale of the home primarily because she is requesting exclusive possession of it. She told the court she has not been able to secure any other accommodations to move into. She said that her modest income would not allow her to afford a home similar to the marital home, which is mortgage-free. The husband replied by stating that the sale of the home would provide her with the money to find a new one.
What does the law say about the partition and sale of a jointly owned home?
The Partition Act addresses the rights people have in seeking the sale of a jointly owned home. It states,
2. All joint tenants, tenants in common, and coparceners, all dowerless, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.
3. (1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.
In addition, Ontario’s Family Law Act states that the court may make an “order that the property is partitioned or sold for the purpose of realizing the interests in it…”
The court explained that a partition and sale of a jointly owned home should be ordered unless the party opposed to it can demonstrate that their right to exclusive possession of it, their equalization payment, or some other relief would be prejudiced. In the case at hand, the wife opposed the sale because she wanted to maintain exclusive possession of it.
The Family Law Act also provides the court with factors it should consider when tasked with making such an order (or not making it. They are:
(a) the best interests of the children affected
(b) any existing orders under Part I (Family Property) and any existing support orders;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children.
In applying the factors to this case, the court found that the parties are in similar financial circumstances. They had no written agreement between them regarding the home. Their children are adults, and while one still lives in the home, he no longer qualifies as a child of the marriage. The wife did not provide the court with evidence of her inability to find alternative accommodations. Finally, the court noted that no allegations of violence on behalf of either party occurred.
As a result, the court ordered that the home be listed for sale within 30 days of the decision.
Contact The Experienced Family Law Lawyers Of Howie Johnson Barristers And Solicitors If You Have Issues Concerning Marital Property Following Separation
To speak with an experienced Windsor family law lawyer about property division, including the sale of a matrimonial home, following a separation, call 519.973.1500, or contact us online. We have decades of experience helping our clients navigate separation and divorce while keeping their ultimate goals in mind. Many of our clients are referred to us by former and current clients and lawyers, accountants, and other professionals.
