This Motion was heard in the Ontario Superior Court of Justice by Justice McGee on April 27, 2011.  She released her judgement on May 2, 2011.

The wife in this case was seeking an interim order for the sale of the matrimonial home, or in the alternative, an award of interim disbursements in the amount of $85,000.00.  The husband was seeking an order for exclusive possession of the matrimonial home and a claim for a trust interest in same, for which the wife was solely on title, despite the fact that it was purchased during the marriage.  There was a slight discrepancy between the parties with respect to the value of the home and the outstanding mortgage on same, meaning the equity in the home was between $285,000.00 and $315,000.00.

The wife had left the matrimonial home with the daughter of the parties (Isabel), to live with her mother and the husband continued to live in the matrimonial home after separation (which was about fifteen months prior to this Motion).  After an emergency Case Conference was held, it was decided that on an interim basis Isabel, would spending approximately the same amount of time with each parent.

The wife wanted to have the matrimonial home sold so that she could pay her legal costs and move closer to her workplace and her child’s daycare centre.  Justice McGee had to determine whether the wife’s rights as a property owner were subject to any competing interests under the Family Law Act that would prevent a sale.

Exclusive Possession

Justice McGee lists reasons that might favour the husband’s opposition to the sale, such as the availability of a trial within a short period, prejudice on an equalization payment, or the need to preserve a residential property for a vulnerable spouse or child.

Ultimately, the husband’s claim for exclusive possession was cast aside for two reasons.

First, because there was suitable alternative housing available in the area that was within the means of the father to purchase and a move would cause limited disruption.  Second, granting him exclusive possession was not needed to preserve Isabel’s best interests, as the husband argued.

Justice McGee determined that the child was at an age (4) where she has not yet developed a bond to a particular home or community and therefore her life would not be affected by a move to another residence in the area.  In any event, there was no evidence proving that her daily and seasonal activities, including daycare, would even be jeopardized.

Trust Interest

The availability of a constructive trust remedy is dependent on finding a clear link between the property a party is suggesting he or she has an interest in and contribution made to that property.  In this case, the husband asserted that because funds from the sale of a home he owned prior to marriage were used to buy the matrimonial home that he has a trust interest in the matrimonial home.

However, Justice McGee noted that on his Financial Statement, the husband listed the value of the home owned before marriage as a pre-marriage deduction.  This has an impact on his net family property calculation, and in turn, the equalization payment made between the spouses., In essence, it means that the husband has already been credited for the value of the home lived in before marriage.

The husband also asserted that he made contributions to the matrimonial home by way of repairs and maintenance, however Justice McGee determined that there was not sufficient evidence to back up his points in this regard.

The Decision

The husband’s claim for exclusive possession failed, as did his claim for a trust-based ownership interest in the matrimonial home.  Therefore, the wife’s Motion for sale of the matrimonial home shall succeed.  Justice McGee added that the husband would be able to bid for the home on the open market.