In the recent case of Bailey-Lewis v. Lewis2020 ONSC 7525, the court was faced with a Motion by the Applicant mother for an Order for the sale of the party’s matrimonial home.

BACKGROUND

The parties resided in North York, Ontario throughout their marriage and separated in June of 2019. On March 7, 2020 the mother moved out of the home and moved to North Bay, Ontario for employment purposes. The parties have three children together, one of whom is still in high school. The matrimonial home is the party’s main asset. The mother sought the sale of the house because she needed equity in order to purchase herself a home. The Respondent father has refused to sell the home and instead claims that he wants to purchase the mother’s interest in the house. The major dispute arises due to the disagreement in the value of the property for a potential buy out of her interest.

Analysis

Originally, both parties agreed that the value of the home was $565,000. The father then obtained approval for a mortgage based on a valuation of $470,000 based on an appraisal he obtained and refused to share with the mother and her counsel, despite repeated requests. The father was likely owed an equalization payment in the amount of $4,849.33 from the mother.

Right to an order for Partition and Sale of a matrominial home:

The court reminds us that a person with an interest in land has a prima facie right to an order for the partition and sale of a matrimonial home under ss. 2 and 3 of the Partition Act. Additionally, a court is required to compel the partition and sale of a matrimonial home unless the opposing party has shown that there is malicious, vexatious, or oppressive conduct on the part of the moving party in relation to the sale itself. This would mean that the father would have had to lead evidence to show that the mother’s actions lead to a justifiable reason for the court not to order the home sold.

Part of the evidence/ explanation the father lead as his reasoning for why the court should not order the sale was that he would not be able to afford another property in his area if the house is sold. The court rejected this argument and found that it was not a compelling enough reason not to order the sale.

There are additional considerations that will apply when a spouse seeks an order for the sale of a matrimonial home prior to the final determination of the spouses’ claims under the Family Law Act, such as in this case. In such case, “an application under the Partition Act should not proceed when the opposing spouse shows that the sale would prejudice the rights of a spouse under the FLA or a court order or, at the very least, that the opposing spouse’s arguable claims under the FLA would be prejudiced”. The father submitted that the equalization of property between the parties was incomplete and he may be prejudiced by the sale of the home. The court turned its attention to the fact that the mother had provided full and frank financial disclosure and the father was the one delaying the completion of their matter coupled with the fact that the money will be held in trust post sale until the matter is settled. The court found that the “risk of prejudice to the Respondent is more imagined than real”.

The father made one last attempt at convincing the court that the home should not be ordered sale by arguing that the impact on the parties 18 year old son should be taken into consideration. The court found no evidence that the son is a vulnerable child or that the sale would have any detrimental or disruptive effects on him to the point that the court found the argument compelling. The court left us with its final remarks that “while an order for the sale of a matrimonial home prior to trial should not be made as a matter of course, there is no reason not to do so in this case”. It appeared that the father’s resistance to the sale was due to the hope that he could purchase the home for a discount from the mother. As the court was concerned that the father would continue delaying the sale until he could obtain financing to purchase the mother’s interest, the court ordered that the mother should have control over the sale process on certain terms. Should the Respondent manage to obtain financing, he can make a fair offer once the house is on the open market.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.