Making The Case for Order for the Sale of a Matrimonial Home

Written on behalf of Arbesman Hamilton LLP

A recent case before the Superior Court of Justice – Ontario Family Court dealt with an application for the court to order the sale of a home owned by a married couple going through divorce.

The Separation

The husband and wife in the case were married in in 1979 and separated, after 35 years, in 2014. They had no children and both worked during their marriage. The husband worked at a bank and the wife was a teacher and vice-principal for a local board of education. At the time of their separation they were both in their early sixties and had been retired for about ten years.

The home in question was jointly owned by the couple and had no mortgage on it. The wife had continued to live in the home since their separation. The husband, who was the applicant seeking to enforce the order for the sale of the home, suggested it had a market value of around $400,000.

The husband stated that his monthly income is about $1,000 per month plus occasional withdrawals from his RRSP. The wife had a similar monthly income and also drew from her RRSP, in this case $10,000 in 2015. Her RRIG and RRSP had a value of approximately $237,000.

Both parties agreed that the property issues resulting from their separation had been left unresolved. It was the husband’s position that he needed proceeds from the sale of the home in order to meet his living expenses. The husband argued that the sale of a matrimonial home should be an obvious outcome of a separation and that no trial should be necessary.

The Test on a Motion For Summary Judgment 

Ontario’s Family Law Rules deal with motions for summary judgments. The court turned to Rule 16, which state the following:

  • EVIDENCE REQUIRED
    • (4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.
  • EVIDENCE OF RESPONDING PARTY
    • (4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.
  • NO GENUINE ISSUE FOR TRIAL
    • (6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
  • POWERS
    • (6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
      • Weighing the evidence.
      • Evaluating the credibility of a deponent.
      • Drawing any reasonable inference from the evidence.

The Court also turned to the Supreme Court of Canada’s decision in Hyrniak v. Mauldin, which states:

“There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment.  This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”

The Court’s Analysis

The wife presented a number of reasons why the sale of the home should have been decided at trial. She had been planning to submit a claim for exclusive possession of the home. She submitted that she suffered from a condition called “Multiple Chemical Sensitivity”, which caused her to react negatively to chemicals found in materials used in the construction of many homes, and that their home had been built specifically without such chemicals. However, the wife submitted little evidence of this, and no expert evidence. The court also noted that the home was built in 1990, but the wife’s diagnosis was not made until 1993.

As a result of this, the court applied the conditions set out in the Family Law Rules and ordered the sale of the home.

If you have questions about property division upon breakdown of a relationship contact Arbesman Hamilton LLP. Our lawyers work extensively in separation and divorce, including the division of property. Contact us online at 416-481-5604 if you are going through a separation or divorce and would like to schedule a consultation.