In Chaudry, the Superior Court conducted a thorough review of the conflicting interests at play, where one party requests the interim sale of the home. This case also focused on setting aside an administrative order for dismissal, however, this analysis focused on the sale of the home, as that is a common issue that arises in divorce and separation.

Background

The parties were divorced in June 2008, and were eight years apart on what they believed to be the date of separation.

In June 2011, the Respondent husband brought a motion requesting the court to order the interim sale of the former matrimonial home, which both parties were registered owners of. The outstanding issues were equalization, the date of separation and support.

The Applicant wife was residing in the home with the parties' 33-year-old son, who was diagnosed with schizophrenia-undifferentiated. The Applicant contested the Respondent's motion, asserting that due to their son's condition, it was best that she remain in the home with him. The Applicant's position was that the issue should be dealt with at trial, as her claims for retroactive support, and an equalization payment, would off-set the Respondent's entitlement to any proceeds from the sale of the home.

The Respondent, 68 years of age at the time of the motion, asserted that he required the interim sale of the home as the proceeds would assist him in making retirement related arrangements.

Analysis

The court looked to relevant case law, which outlines that prior to trial, the court has the jurisdiction to order the sale of the home. The court must however, consider whether the resisting party (often the party still residing in the home), has any competing interests which fall within the scope of the Family Law Act. Case law makes clear that the absence of such a competing interest results in granting the order for the interim sale.

The court will also look to the availability of a trial within a short period of time. This requirement establishes that even without reviewing the basis for the claimant's request for the sale, the court acknowledges the claimant's interest in having the matter heard and dealt with in a timely manner.

Relevant case law also stipulates that an order for the sale of jointly owned property, shall not be made in advance of trial, where there is a substantial right to be tried that is connected to the property.

A noteworthy issue in Chaudry is the Applicant's failure to provide disclosure. Notwithstanding this fact, the Respondent conceded that an equalization payment would be payable by him, regardless of the correct date of separation. The issue of equalization was therefore restricted to the amount of the equalization payment, rather than entitlement to same. Based on this fact, the court made clear that for the Applicant to obtain an order to receive the Respondent's interest in the home, she would have to show that the amount of equalization owing to her was equal to or greater than the Respondent's equity in the home.

In Chaudry, the court recognized that the Applicant had to establish a prima facie basis that dealing with the sale at trial would allow her to seek a legal remedy connected to the property. Based on her asserted claims, she would essentially have to show how the delay of the sale until trial, was necessary to determine the amount of equalization owing and support arrears she claimed to be owing.

In addressing the Applicant's claims as outlined above, the court took into consideration that the Respondent had paid approximately $2,200.00 to $2,500.00 per month towards household expenses without any tax deductions. The court also acknowledged that the parties' disabled son was in receipt of ODSP, which would minimize any support requirements. Furthermore, the Applicant had not established that she would be entitled to all of the Respondent's equity in the home, and even more so how she could compensate the Respondent, if need be, once the equalization payment is determined. She also failed to show how she could carry all the household expenses and the mortgage, if the Respondent's interest in the home was transferred to her.

An important point made by the court was such that joint owners do not have a right to purchase a property from the other owner. Therefore the Applicant was held to a prima facie proof of her claims to justify the matter being postponed to trial.

Based on the foregoing the court ordered the interim sale of the home, as there was no prima facie case that the Applicant had a legal remedy to be dealt with at trial, which was determinative on the property.

Conclusion

This case provides an incredible insight into the difficult analysis involved, when looking at competing interests as they relate to the interim sale of the home. This case shows that an interim sale is anything but a matter of right, but nonetheless will be called for where there are insufficient grounds to postpone the issue to trial.