Family homes can be one of the most valuable assets a couple owns, and in the event of separation or divorce, it’s likely that the home will be sold or one of the parties will purchase the interest of the other. However, sometimes dividing property such as a home is easier said than done, especially when the parties disagree over whether the home should be sold or not. This was the situation in a decision recently issued by the Ontario Superior Court of Justice.

One parent wants to sell the home, one does not

The parties began living together in July 1996 and separated in June 2019. The mother moved out of the home in March 2020 in order to move to North Bay for work. The couple have three children, two of whom are adults, and one of whom was is 18-years-old and is in his last year of high school. The youngest child lives with the father in the family’s home.

The mother brought the application seeking an order to sell the home. The home is the family’s primary asset and has a small mortgage left on it. The mother brought the motion because she wants to use her share of the equity in the home to purchase a new home in North Bay. The father has refused to sell the house and has instead requested to purchase the mother’s interest in it.

Father fails to provide financial information

Following a February case conference, the parties had agreed to share financial disclosure. The mother sent tax, employment, and banking records to the father, but he failed to do the same. In June 2020 the parties agreed that the home was worth $565,000, and the father said he had obtained approval for a mortgage on the basis that the home has a value of $470,000. While he was asked to provide them, the court was not given evidence of this by the father.

Does the law allow for an order to sell the home?

The court stated that the Partition Act provides someone with an interest in land a prima facie right to an order for the sale of a matrimonial home. The courts are required to compel the partition and sale of the home unless the opposing party can show there has been malicious, vexatious, or oppressive conduct on the part of the moving party. In this case, the father had to show this was the conduct demonstrated by the mother.

There was conduct to prevent the sale of the home. The father’s argument then turned to the difficulty he would have finding a new home in the city they lived in if their home was sold. He also stated that he may be prejudiced by the sale of the home since an equalization of family property had not yet been completed. The court dismissed this because the father was the one holding up that process. The court also found no reason to prevent the sale of the home because it would be troubling for the parties’ 18-year-old son. The court did not think this would be an issue.

As a result, the court ordered the home to be sold.  

If you are contemplating a separation, or have already begun the process, contact NULaw in Toronto as soon as possible. Obtain experienced legal guidance from our family lawyer 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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