In the Kanura v. Simpraga case, the Ontario Superior Court of Justice dealt with whether or not to order the sale of a house under the Partition Act while a couple’s family law issues were still in the process of resolving themselves. This case helps provide greater direction on this difficult topic, and reaffirms the previous Ontario caselaw.  It demonstrates the care the court will take in such interim motions. Since, while the motion may be technically on an interim basis the sale of the house will obviously have permanent consequences.

The court utilized heavily the Ontario Court of Appeal case of Silva v. Silva.  In that case, a test for whether or not to order a partition of a property when dealing with matrimonial issues was first enunciated.  The case stated that while matrimonial issues should have priority. A claim for sale under the Partition Act should not proceed, where it would prejudice the rights of either individual under the Family Law Act.  The Court of Appeal did, however, caution against individuals holding property hostage until their claims could be met. The court also discussed the case of Bailey v. Rhoden, where the sale of a property was disallowed because it caused serious hardship on one party and was oppressive.

The court applied these tests to Mr. Kanura and Ms. Simpraga’s case.  In this case Mr. Kanura sought the initial partition and sale of the home. It was later abandoned; and Ms. Simpraga obtained three separate court orders for the sale of the jointly held matrimonial home.  Mr. Kanura avoided these orders through either negotiating acceptable terms with Ms. Simpraga or returning the matter to the court for direction.  He was seeking an unequal division of property. He was concerned that if the house was sold, Ms. Simpraga would be incapable of paying if he was successful. Ms. Simpraga, on the other hand, argued that she was on a list for assisted living and required the money to fund her living expenses and litigation costs.

The court determined that Mr. Kanura had no rights or claims which would have been prejudiced by the sale of the home. He was not seeking an order of exclusive possession; but rather was simply in favour of waiting to sell the home.  Further, there was no evidence of hardship that would be brought upon Mr. Kanura by an order to sell the home.  Rather, the preponderance of evidence indicated that Ms. Simpraga would undergo much more hardship if the sale of the home was prevented.  In the end, however, the court stated that it did not actually have to make this determination.  Rather, all the court had to do was to enforce the three orders which already existed. Under either ground, the court stated, it was ordering the house to be sold.