While a joint owner to a property has prima facie right to its partition and sale, that right may be restricted if the party requesting the sale is engaging in conduct that is malicious, vexatious, or oppressive.
In Rainville v. Walsh, 2021 ONSC 446, the court refused to Order a sale of the matrimonial home because it would result in the husband having no place to live. Justice Ellies stated:
“The owner of real property has a prima facie right to have the property sold and to recover the value of their interest in the property: Partition Act, s. 2; Davis v. Davis (1953), 1953 CanLII 148 (ON CA), [1954] O.R. 23 (C.A.), at p. 29. However, that right is subject to a narrow exception, namely where the party seeking the sale is guilty of malicious, vexatious, or oppressive conduct: Latcham v. Latcham, 2002 CanLII 44960 (ON CA), at para. 2. In Greenbanktree Power Corp. v. Coinamatic Canada Inc. (2004), 2004 CanLII 48652 (ON CA), 75 O.R. (3d) 478, at para. 2, the Ontario Court of Appeal held oppression includes hardship on a co-owner resulting from the order. In the circumstances of this case, I have concluded that there would be hardship to Mr. Walsh if the Jane Street property were to be sold at this time.”
Mr. Walsh was an alcoholic who though sober at the time of the motion, did not appear to be in a very stable state. He had lost his driver’s licence more than once for impaired driving and had been hospitalized for alcoholism or other alcohol-related illnesses. While Mr. Walsh’s company had several rental properties, they were all being occupied except for one which required repairs. Even if Mr. Walsh gave notice to a tenant to vacate one of the units so he could occupy it, given the recent passage of O. Reg. 13/21 passed under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, which currently prohibits residential evictions. the court was not certain the Mr. Walsh would be able to evict them.
The wife’s request for partition and sale was denied.
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