How may a court deal with a request for the sale of a matrimonial home prior to trial? Well, this case appears to show an emerging trend with Ontario Courts.
The couple separated days short of their fourteenth wedding anniversary. They have two children together (15 & 13). The parties lived separate and apart in the matrimonial home until days before this motion was brought. The Applicant/Father brought an interim motion for the partition and sale of the matrimonial home. The Respondent/Mother opposed the motion and asked that the issue of the sale be left for trial, which is scheduled to take place in Fall 2022, at which time she intends to request a time-limited order for exclusive possession of the home until the parties’ eldest child completes high school. The children reside primarily with the mother and have contact with the father on Wednesdays after school until 9:30 pm and every other weekend from Friday after school until Sunday at 7:00 pm. This arrangement was ordered on the basis of the recommendations of the assessor. A few months prior, both parties had sat the children down and promised to allow them to remain in the house. The father then moved out and brought this motion a few days after without any rhyme or reason as to why he changed his mind.
There is only one main issue in this motion; should the sale and partition of the matrimonial home be granted to the Applicant/Father at this point in time?
The jurisdiction with regards to the partition and sale of a jointly owned property is found in sections 2 and 3 of the Partition Act. It states that joint tenants, tenants in common, and all parties with interest in a piece of land in Ontario may be compelled to partition and sell the land. It also states that any person interested in land may bring an application for the partition of the land if the sale is considered by the court to be more advantageous to the parties interested.
Justice Kurtz cites Goldman v. Kudeyla, 2011 ONSC 2718, in the applicable principles and tests for the partition and sale of a matrimonial home on an interim motion. The case states that:
- A property owner has a prima facie right to sell subject to any competing interest under the Family Law Act.
Does the resisting party have a prima facie case that they are entitled to a competing interest under the Family Law Act? If not, the right to sale prevails. If yes, the motion for sale is denied unless the other party can prove that the sale will not prejudice the rights of the resisting party.
If you need any help with family law matters, contact AP Family Law Lawyers in Markham, Toronto, Pickering, and Scarborough. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.