For many couples, the matrimonial home is the most valuable asset they own. When you add in sentimental attachments to a home, what happens to a home can be a very emotional and financially consequential decision to make. In a recent case heard by the Ontario Superior Court of Justice, a father went to court in an attempt to resolve what would happen to the matrimonial home he shared with his wife and their two children.

Mother and children stay in home following separation

The parties were married on August 11, 2001 and separated just over 17 years later in 2019. They had two children during the marriage, both of whom are still under 18-years-of-age. The couple own a home in Toronto, which the father voluntarily vacated in April 2019. Since then he has continued to pay 50% of the capital expenses associated with the home, including property taxes and repairs. He had been renting an apartment close to their home, but left it to move in with his brother outside of Toronto once the cost of maintaining the apartment and his share of the home became too much of a financial burden. The father has said that is inability to have overnight access with the children while he lives with his brother has been unsatisfactory, and that the children don’t have the experience they should while spending time with him when he visits the city.

An order to sell the home, but no action

The parties attended a case conference in January 2020 in which they agreed to sell the home. This would allow the father to purchase a home which would be suitable for the children to visit him in.

Following the case conference, the parties retained a listing agent for the home. However, the home was not listed, and their contract with the listing agent expired. Since then, the father stated the mother has not complied with the order to list the home, or another order related to temporary custody and financial disclosure.

In the meantime, the court learned that the father and his lawyers had reached out to the wife on a number of occasions in order to inquire about the home. The correspondence indicated the mother was in violation of the order to sell the home, which had still not been listed. Despite this, he heard from his children that the mother was planning to move with them to her mother’s home. However, the father was not able to confirm any of this as the mother did not respond to letters, phone calls, or text messages.

This time around, the father asked the court to compel the mother to comply with the order to sell the home. It is his position that her willful refusal to respond to him is an obstruction of the order. The father also asked for exclusive possession of the home so he could ready it for sale.

The court determined that the mother had provided the court with no evidence in regard to the motion, bringing no reasonable explanation to the table. The court also had no faith that she would comply with an order to sell the house. As a result, it ordered the husband to have exclusive possession of the home so he could ready it for sale.

If you are contemplating a separation, or have already begun the process, contact NULaw in Toronto as soon as possible. Obtain experienced legal guidance and ensure that you receive a fair division of your property and assets. Contact us online or at 416-481-5604 to book a consultation with family lawyer Lex Arbesman.

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