This was a case heard by the Ontario Superior Court of Justice in January of 2011 regarding the enforcement of an Order for the division of property.

The husband (Mr. Kanura) in this matter applied for partition and sale of the matrimonial home under the Partition Act and there were a series of Court Orders, three in total, which directed that the home was to be listed for sale.  The husband remained in the home for an extended period of time and therefore failed to act on the aforementioned Orders.  His wife (Ms. Sampraga), having been placed on a waiting list for assisted housing and needing some capital in order to find suitable living arrangements, applied for the implementation of the Orders.

Mr. Kanura’s position was that the family law issues between he and Ms. Sampraga needed to be resolved before the actual sale of the property.  His authority for this position was the Ontario Court of Appeal decision in Silva v. Silva where it was held that:

“Where substantial rights in relation to jointly owned property are likely to be jeopardized by an Order for partition and sale, an application under the Partition Act should be deferred until the matter is decided under the Family Law Act.”

Essentially, where the two acts conflict the Family Law Act should be the statute of first resort, particularly where giving the Partition Act precedence would prejudice the rights of either spouse under the Family Law Act.

In the case at hand, it was decided that there is no legitimate reason why Mr. Kanura should be able to continue to “hold the house hostage” until his claim for unequal division of the net proceeds of sale of the home and his wife’s claim for spousal support were dealt with.  Because there are no issues with respect to ownership of the property, the immediate sale would not prejudice either party’s rights in same and the family law issues could still be dealt with properly after the sale.

In his defence, Mr. Kanura suggested that a forced sale would cause him undue hardship, and while Justice Price mentioned that there would always be some hardship when a party is forced to sell their home against their will, he decided that in light of the facts of this case, the nature of the hardship was not malicious or vexatious, and thus it would not be enough to prevent a ruling that was in Ms. Sampraga’s favour.  Mr. Kanura would have had to establish that “serious hardship” would have resulted from the sale if he wanted to succeed in his defence of the application.

Justice Price found that in reality the issue of the sale of the home had already been decided – three times.  His role was simply to bestow upon Ms. Sampraga the entitlement to have the Order implemented.  There was nothing in the case law, even that cited by the Respondent, that would have swayed him in a different direction.

The application was granted and Justice Price mandated that steps would be taken to move the proceeding to trial should Mr. Kanura not agree to the mechanics of the sale of the property.

This case is a good study on some of the law pertaining to partition and sale of a home, and shows that the best laid plans do not always work out.

In my experience, it makes sense for most family law litigants to resolve their family law issues first, such as equalization of property, if they want to buy-out their spouse’s interest in the home.  In some cases, entitlement to a sizable equalization payment from the opposing party can help lower the potential amount of a buy-out of the opposing party’s interest in the home, and in most cases makes a buy-out financially viable.  However, litigants do not have the right to, “hold the house hostage”, until all of the family law issues are resolved.  As such, I agree with Justice Price’s decision.