Selling the Matrimonial Home After Separation

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When people who are married or are involved in a long-term relationship separate or divorce, one of the biggest considerations they have to make is often what to do with the matrimonial home, not only is the matrimonial home often the most significant asset a couple has, it can also carry deep personal attachment for both parties. Deciding who gets to keep the home when both want it or if it should be sold when one of the parties wants to do so can lead to legal disputes. A recent decision from the Ontario Superior Court of Justice looks at what factors should be considered when one party to a separation wants to sell a home before a divorce is finalized and how the involvement of children can impact such a decision.

Father wants to sell home to take advantage of hot market

The mother and father were married in 2006 and had two children who are now teenagers. They separated in February 2020 but continued to live together (though separate and apart) in the matrimonial home until January 2022. The children have lived in the home since the parties purchased it 13 years ago, and they attend activities within close proximity to their home.

A realtor hired by the father stated that the current market value of the home is between $2.25-2.35 million. There was a line of credit tied to the home, but the father told the court he was of the view that he and the mother each had about $770,000 in equity in the home. The mother estimated a slightly lower amount of equity at $715,000.

The father claimed he had a right to partition and sale

The father brought the motion asking to be able to exercise what he called a “prima facie right” to partition and sell the home. The father submitted that the mother was obliged to allow it unless she could produce a reason why it should not be sold. He said he wanted to sell the home prior to the finalization of their divorce because the real estate market was hot. He was willing to delay the closing of the sale until the summer to lessen the amount of disruption in the children’s lives while in school. 

The mother wanted the issue of whether the home could be sold to be determined at trial, which is currently scheduled for the fall of 2022. She told the court that her intention at trial would be to request a time-limited order of exclusive possession of the home until their eldest child completes high school. She expressed that the father had already relayed his willingness to let her buy him out of his share of the home. Moreover, she and the father had told the children that they planned to keep the home rather than sell it. The mother stated that other issues to be determined in the trial this coming fall might provide her with the cash needed to buy out the father and that the lease he currently has on his apartment only ends in October. 

Can the father unilaterally force the sale of the home?

Since 1953, Ontario courts have upheld the principles of the Partition Act. The Partition Act allows joint tenants and tenants in common to partition or sell land. A 2002 decision from the Ontario Court of Appeal held that the exercise of the court’s discretion to prevent such a sale is narrow and that a sale should only be prevented “if it is the result of malicious, vexatious or oppressive conduct.” Any party looking to stop the sale of property must establish that they would be prejudiced by the sale because they have an order for exclusive possession, or a claim for exclusive possession is soon to be determined by trial, and the sale of the property would prejudice that pursuit.

In an interim motion, the mother would have to show she is entitled to a competing interest under the Family Law Act. If she is successful in doing so, the father will have to show that the sale will not prejudice that interest. 

The mother’s plans would be prejudiced if the father went forward with the sale before the trial

The court looked at a series of factors to be considered, which were established in a 2020 decision from the Ontario Superior Court of Justice. According to those factors, the mere existence of children is not enough to oppose a sale of a home. The court must still consider the impact of a proposed sale on children (or a vulnerable spouse). The best interests of any child must be a primary consideration. Additionally, orders for sale at an interim proceeding should not be made “as a matter of course,” and the entire family proceeding should be looked at holistically, which is what a full trial provides. 

The Court found that the mother’s plans to purchase the father’s share of the home would be prejudiced by its sale before their full trial. The Court also found that the father admitted to telling the children they would do everything possible to allow them to stay in the home. For this reason,  the Court could not find that he was acting in the best interests of the children by attempting to then sell the home. 

The court ruled that any determination concerning the future of the home would be best left for trial and denied the father’s request. 

Contact Howie Johnson Barristers & Solicitors for family law issues related to property division

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, as well as by lawyers, accountants, and other professionals.

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