When a relationship ends, parties living together in a jointly owned home may be required to sell the home to unlock and share the equity to resolve any financial consequences of the relationship breakdown. A joint property owner has a presumptive right to partition and sever the property according to an order made under the Partition Act in Ontario. However, courts will review each request and make their decision on a case-by-case basis. 

When the joint property owners are spouses, the courts will also consider the parties’ rights under the Family Law Act and may also consider additional factors, such as the impact of a sale on the family, particularly on children. While the mere fact that a child lives in the home in question is insufficient to prevent a sale from occurring, the court may decide to decline a sale request after considering whether a sale would be contrary to the child’s best interests.

Parties Have a Right to Partition and Sale of Joint Home 

A court’s jurisdiction to order the partition and sale of a jointly owned property is found under sections 2 and 3 of the Partition Act. Section 2 provides that all parties who are interested in any land in Ontario “may be compelled to make or suffer partition or sale of the land, or any part thereof.” 

Section 3(1) confirms who may bring an action or application for partition and indicates that any person interested in land in Ontario “may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.” 

Courts have a narrow window of discretion to refuse a request for partition and sale

In Davis v. Davis, the Ontario Court of Appeal discussed the right of parties to seek partition and sale of property. The Court noted that there is an obligation on a joint tenant to permit a partition or sale, and further, courts may compel a sale if there is no reason why an order should not be made. The Court did not outline the reasons which might justify an exception to the general right to partition, however, the Court noted that each case must be considered based on its unique circumstances.

In Latcham v. Latcham, the Ontario Court of Appeal indicated that there is a narrow window of discretion for a court to refuse partition and sale. Such discretion may be used in instances which involve malicious, vexatious, or oppressive conduct by a party. However, when the matrimonial home is subject to partition in advance of the trial and resolution of outstanding financial issues, the right to partition and sale can be subject to competing interests under the Family Law Act. 

In Chaudry v. Chaudry, the Superior Court of Justice suggested that an order for the sale of jointly owned property should not be made before a trial “where there is a substantial right in relation to property to be tried, and that determination of the equalization payment may be such an issue.”

Property Sale Must Not be Contrary to the Child’s Best Interests 

Before ordering the partition and sale of a jointly owned property, courts will also consider the best interests of any children who the sale will impact.

In Dhaliwal v. Dhaliwalm, Justice Pazaratz of the Superior Court of Justice stated that courts should consider both the positive and negative impacts of a sale on both the joint owners and the family as a whole. While an order for the sale of a matrimonial home is routinely sought as a means to allow the parties to obtain their equity in the home, the impact of the sale on a vulnerable spouse and any children involved must also be considered. Justice Pazaratz recognized that these considerations can include accounting for the emotional impact of a proposed sale and ensuring that the parties have access to appropriate housing subsequent to the sale. 

In Kaing v. Shaw, the Court found that it was appropriate to consider the potential hardship that would impact three children and the joint tenant who would be affected by a forced sale. The Court determined that a forced sale would deprive the children of a place to live at a time when their mother had insufficient means to secure alternative accommodation due to her limited income. Further, the family home sale would also be disruptive to the children, taking them away from a familiar neighbourhood, uncle and aunt, and their school and daycare. Under these specific circumstances, the Court found that the motion for a sale was oppressive and declined to grant such an order. 

What Child Focused Reasons Can Restrict a Sale? 

In the case of Delongte v. Delongte, the applicant argued that the jointly owned matrimonial home should not be sold as it was the only home the children had known, was close to their school, and provided them with a sense of stability. Justice Shaw remarked that if these factors were “a sufficient basis to resist the sale of a matrimonial home following separation, no matrimonial home would be sold in situations where a spouse wished to remain in the home with the children.” Although children can be emotionally attached to their home, that alone is not a reason to defeat a presumptive right to sell jointly owned property. 

The applicant pointed out that the children had difficulty coping with their parents separation and were required to attend counselling. However, no evidence indicated that the sale of the home would have a detrimental impact on the children’s wellbeing. The children, in this case, were young teenagers and Justice Shaw found that their experience was typical in high-conflict separations given that it is a “life changing event for all involved.” Ultimately, the Court held that because the children were part way through their school year at the time when the application was being heard, the sale of the home was delayed until the end of their school year. 

A party who opposes the partition and sale on the basis that it is contrary to the best interests of children will be required to establish that such action will have a negative impact on the children beyond a mere disruption. In Dhaliwal v. Dhaliwalm, Justice Pazaratz recognized that “the mere existence of children in a household is not in itself a sufficient basis to oppose a sale.” 

Likewise, in Goldman v. Kudelyla, there was no evidence to support the assertion that the child would be unable to participate in the same activities if she resided elsewhere, and further, there was no indication that the child was bonded to the particular home in a way that would cause harm if the home was sold. 

Even when courts have expressed some concern at the frequency of children moving, other considerations are important. In Elham v. Kasra et al., even though the children had already moved twice in the year prior to the application, the concern about the children moving again was outweighed by the need to end the conflict between the parties. The Court determined that selling the property would help resolve ongoing conflict, ultimately benefiting the children.    

The Family Lawyers at NULaw in Toronto Guide Clients Through Disputes Regarding Property Division and the Matrimonial Home

At NULaw, our family lawyers have extensive knowledge and experience helping clients navigate complex issues following a separation or divorce. Issues between spouses frequently arise concerning the division of property and assets, including the matrimonial home, and financial issues due to the relationship breakdown. Our lawyers take time to listen and understand your circumstances before advising on a strategy to help you move forward following a relationship breakdown. To speak with one of our lawyers regarding your questions relating to the potential sale of your family home, complete our online form or call our office at 416-481-5604.