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In last week’s blog, we discussed some of the conflicts that can arise when a separated or divorced couple can experience when selling their matrimonial home following the breakup of the relationship. Today we look at a recent decision from the Ontario Superior Court of Justice where the parties had an agreement to allow one of them to purchase their home prior to it being listed for sale. However, when an offer comes in after being listed, the husband is suspicious about who it’s coming from.
Consent order for purchase of home
Following their separation, the mother stayed in the matrimonial home with the parties’ child while the father moved out. Close to two years after the separation, the parties entered into a consent order that stated the home was to be listed for sale, but prior to the listing, either party could make an offer. Once listed, there would be no right of first refusal.
The home was listed for sale at a price of $1,275,000. They received an offer for $1,180,000, which the father wanted to accept, but the mother did not, even when the purchaser offered to increase his offer to $1,280,000. Following this, the father told the mother he would match that offer, but no deal was made.
A mysterious offer is made on the matrimonial home
About one month later, in November 2020, a numbered company (“the company”) made an over for $1,285,000. The father said he was suspicious of this offer. He asked his lawyer to look into who made the offer, and a search came back with information about the company, including a head office and the name of the company owner. This satisfied the father.
Once the agreement of purchase and sale was put in place, the husband once again asked for a corporate search to be undertaken. This time, the name the father found out that the mother’s parents were the registered owners of the property.
The father argued that he was deceived and that the mother and her parents were orchestrating fraud.
Should the agreement of purchase and sale be set aside?
The court stated that the Supreme Court of Canada had previously ruled on what elements constitute common fraud. They are:
(1) a false misrepresentation made by the defendant;
(2) some level of knowledge of the falsehood of the representation on the part of the defendant whether through knowledge or recklessness;
(3 ) the false representation caused the plaintiff to act; and
(4) the plaintiff’s actions resulted in a loss.
The court looked at the facts leading up to the trial and found that the identity of the purchasers, even if they are the mother’s parents, is not relevant. There was no condition in the parties’ agreement that her parents could not purchase the home. Furthermore, the father didn’t suffer any damages from the sale, which he executed willingly. The court added that the information of the purchasers was readily available to the father.
The court stated that the mother had likely erased any hope of goodwill between her and the husband, but that ultimately, no rules were broken.
To speak with an experienced Windsor family law lawyer about property division following a separation, call 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.
