BACKGROUND

The father brought an interim motion for the partition and sale of the jointly owned matrimonial home, which the mother opposed. The father claimed that this would be a simple motion as he had the right to the sale of the home as a joint owner under the Partition Act and the mother must demonstrate malicious, vexatious or oppressive conduct to deny the sale. The mother argued that the issue of the sale of the home should be left for trial where she intended to request exclusive possession of the home until the children finish high school, the children are nearly 16 and 14. After the parties separated, they sat their children down to inform them that they would do everything in their power to allow them to remain in the home as the children have very close ties with the community.

THE LAW

While the partition and sale of a jointly owned property is typically available at the request of a joint owner, that principle is subject to greater discretion when the court is dealing with a matrimonial home and when the request is made at an interim rather than trial stage of the proceedings. In an interim motion, the court must look at all of the factors of the case to review the merits of the sale, while considering the interests of each party and the children. Further the court must balance the advantages of sale against the disadvantages to the parties’ claims. A key issue is how the best interests of the children would be affected by the sale before trial. The best interests of the children may be sufficient to overturn the presumption for the father’s right to the sale of the home.

APPLICATION

In making his decision, the judge noted that the father had admitted that it was in the best interests of the children to remain in the home when he and the mother told the children they would do their best to keep them there. Although the father would be required to wait until trial in six (6) months to address this issue again, the judge noted that he had not suffered a great delay as he brought this motion within days of him leaving the matrimonial home. Further, since there were various outstanding issues with respect to the parties property division claims, the funds from the sale of the matrimonial home would likely be held pending the resolution of those issues. The judge explained that the sale of the home would prejudice the mothers claim for exclusive possession that she intended to bring about at trial. It is for these reasons that the motion for the sale of the home was dismissed.

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