One of the more difficult decisions a couple has to make when going through a separation or divorce is usually what happens to the matrimonial home. In some cases, parents may decide to enter into cohabitation agreements, which would see them share possession of the matrimonial home. However, in many cases, the home remains in the exclusive possession of one of the parties or is sold. A recent decision from the Ontario Superior Court of Justice shows that when the party not living in the home wants to sell it on the basis of hardship, they must provide the court with sufficient evidence of said hardship.

Father asks court to sell home

The parties involved were married in 2011 and separated seven years later after having three children. Following the separation, they continued to reside separate and apart in their home. This arrangement lasted until March 20, 2021, when the police were called at the behest of the father regarding an incident between him and the mother from 15 years earlier. Charges are pending against the mother.

Following that incident, the mother gained exclusive possession of the home and is residing there with the parties’ three children.

Child support payments begin when father moves out

After the father moved out, he was required to pay child support. He had been working as a taxi driver prior to the COVID 19 pandemic and his income was imputed at $35,000 per year. Based on his income, his child support payments were set at $718 per month.

The father told the court that the pandemic has had a crippling impact on his employment. He stated that he had a second taxi prior to COVID-19, which he leased to another driver for $300 per month, but the driver has not been able to pay that amount in over a year. The father also returned all of his own taxi equipment to the taxi company, stating he cannot afford to pay them their share and has not worked since April 2021. During that time he has earned $1,800 per month through the Canada Recovery Benefit, of which $1,000 goes towards rent and $718 goes towards child support.

Father asks to sell the matrimonial home

In light of this, the father asked the court to order that the home be sold. He told the court that mortgage payments have not been made on the home since April 2020 and that he is worried the bank will foreclose on it. He also said that the housing market is in a favourable position for selling the home at this time.

The court asked the father about two properties he own in Sri Lanka, but the father claimed he owned them in trust for his own father, and that one of them is his father’s principal residence, and that his father is living off the proceeds of the sale of coconuts on the second property.

Court does not find the father provided enough evidence to warrant sale of home

The court stated it was not prepared to grant the father’s motion for the sale of the matrimonial home. The court cited case law from 1992 and 2020 which state that orders for the sale of the matrimonial home should not be made as a matter of course and that the impact of the sale on the children and the spouse should be taken into account.

The court found that the father had not provided a compelling enough argument to warrant the sale, noting that while he has returned his taxi equipment, he still owns his taxi license. The court was also not satisfied with the lack of evidence provided in relation to the Sri Lanka properties.

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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