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When couples get divorced or separated, one of the largest issues to deal with outside of those involving children can be what to do with the matrimonial home. There are typically two options that a couple can choose from. The first is for one party to buy out the other’s interest in the home. The other option is that the home be sold with any profits from the sale being divided between the parties. This, along with the division of other familial property, is known as the division of property. The family home often represents the largest asset a family owns, while also carrying a lot of emotional weight. What comes of it can often lead to a disagreement between the parties. This was the case in a decision from the Court of Appeal for Ontario where a mother appealed the court-ordered sale of the family home, allowing the court to clarify the factors to be considered in making such a decision.

The background

The couple separated on July 7, 2012 after being married for 18 years. By 2017 their children were 22, 19, and 16 years old. The children lived with their mother, but only the youngest was a “child of the marriage” since the others were over 18-years-old.

During the original trial the father asked the court to order the sale of the matrimonial home. The mother asked the court to transfer ownership of it to her and that the couple’s rental property be transferred to the father.

The trial judge laid out the principles to be applied when determining whether a matrimonial home should be sold. They were summaries in a 2016 decision which stated,

(a)   a joint tenant has a prima facie right to an order for the partition or sale of lands held with another joint tenant;

(b)   a court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made;

(c)   the party opposing the sale must show malicious, vexatious or oppressive conduct to avoid the order; and

(d)   the malicious, vexatious or oppressive conduct must relate to the partition and sale issue itself and not to the general conduct of the person bringing the motion.

The mother argued the home should not have been sold because its location was convenient for the children, and it had enough space for them to live with her even once they marry. The husband wanted it sold so the couple could access its equity. He also claimed the parties could not afford the home’s $490,000 mortgage as well as its other operating costs since neither party was employed at the time of the trial.

The court ordered the home to be sold with a closing date no later than March 15, 2018.

On appeal

The mother appealed the decision, submitted the trial judge erred in ordering the sale because he did not consider the best interests of the parties’ children who have resided with the mother since the separation.

However, the court agreed with the trial judge’s decision, writing,

“The (father) had a prima facie right to an order for the partition and sale of the matrimonial home. As a result, the trial judge was required to order the sale unless the (mother) demonstrated that such an order should not be made and showed there was malicious, vexatious or oppressive conduct on the part of the (father) in relation to the sale itself. The trial judge found that the (mother) did not allege there was any such conduct nor did she put forward any other legal basis to preclude the sale of the matrimonial home.”

The court also noted the parties’ inability to carry the costs of the home as being a reason to uphold the order.

The original due date for the sale of the home had passed, so the court ordered that both the matrimonial home and the parties’ rental property be listed by February 15, 2019 with a closing date no later than June 30, 2019.

This case is a good reminder to keep in mind the factors relevant to an issue such as whether the matrimonial home should be sold. At Gelman & Associates we provide our clients with compassionate, forward-thinking guidance, looking at all the legal arguments available to pursue our clients’ interests. Please call us at 1-844-769-0737 or contact us online to see how we can help you with your family law issue.

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