The post-separation sale of the matrimonial home can be a source of dispute as it is often a significant family asset with high sentimental value. Spouses may not transfer a matrimonial home without the other spouse’s consent. Court intervention may be required if a spouse refuses to consent or is uncooperative in facilitating the home’s sale.

Under section 23(b)(iii) of the Family Law Act, the court may authorize the disposition of the matrimonial home if it finds that the spouse whose consent is required is unreasonably withholding consent. This may arise when a spouse makes clear they have no intention of selling the home or imposes unwarranted conditions on their consent. 

Parties With Interest in Matrimonial Home Have Right to Order for Partition & Sale

In Bailey-Lewis v. Lewis, the mother brought a motion requesting the Court order the sale of the matrimonial home. The mother wished to sell the house so she could use her share of the equity to purchase another house in North Bay. The father refused to have the home listed for sale and wanted to purchase the mother’s interest in the home. Both parties had indicated in their financial statements that a fair market value for the matrimonial home would be $565,000. However, the father had obtained approval for a mortgage on the basis of a value of $470,000 based on an appraisal from the prospective lender. The father argued that the mother would be able to afford the purchase of a house in North Bay while he would be unable to afford the purchase of a house in Toronto if the matrimonial home was sold.

The Court reminded the parties that a person with an interest in land has the right to an order for the partition and sale of a matrimonial home under sections 2 and 3 of Ontario’s Partition Act. Courts are required to compel the partition and sale of a matrimonial home unless it can be shown that there is malicious, vexatious, or oppressive conduct by the requesting party. Reviewing previous case law on the topic, the Court noted that the consequences of the sale of a matrimonial home are not hardship amounting to oppressive conduct. 

Court Can Refuse to Compel Sale if Real Risk of Prejudice to Opposing Spouse’s Equalization Rights

Additional considerations arise when a spouse seeks an order for the sale of a matrimonial home prior to a final determination of the spouses’ claims under the Family Law Act. The Court noted that an application under the Partition Act should not proceed when the opposing spouse shows that the sale would prejudice their rights under the Family Law Act or a court order. The father suggested that since equalization of property had not been completed, he could be prejudiced by any sale. 

However, unlike the father, the mother had provided financial disclosure. The disclosure showed there was a sizeable amount of equity in the matrimonial home that would be held in trust following the sale. As such, any risk of prejudice was “more imagined than real”. 

The Court found that while an order for the sale of a matrimonial home prior to trial should not be made as a matter of course, in this case, there was no reason not to do so. The father had to show a justifiable reason why the house should not be sold, which he failed to do, and the Court found no evidence of any prejudice to the father. It appeared the father did not want the property sold on the open market so that he might buy it directly, at a possible discount, to increase his chances of obtaining financing. 

Spouses Cannot Unreasonably Withhold Consent to a Sale

In Leitch v. Novac, the wife applied to the Court for permission to list and sell a farm property without the husband’s consent or involvement. Both parties accepted the property was a matrimonial home, with the husband agreeing that the farm should be listed for sale. However, his consent was conditional on several terms:

• That he participate in the listing and sale of the property; 
• That the sale proceeds be used to satisfy outstanding costs orders;
• That additional proceeds be paid as compensation for furniture, appliances, and tools that were purchased post-separation and were being sold with the farm; and 
• That the remaining proceeds be held in trust. 

The wife argued that as consent to the sale of the farm was conditional on certain conditions that she did not accept, there was no genuine consent.

Conditions to Consent Must Follow Purpose of Family Law Act

The Court acknowledged, however, that withholding consent can be appropriate in some circumstances. For instance, it is reasonable when the best interests of the children would be harmed. It is also reasonable to withhold consent when the sale would prejudice an equalization payment or cause hardship to the spouse whose consent is required. Whether the imposition of conditions on the sale of a matrimonial home may be appropriate will be fact-specific and based on what is appropriate in each case. Any conditions must also be in line with the purpose of the Family Law Act, which is to provide for the “equitable resolution of economic disputes that arise when intimate relationships between individuals who have been financially interdependent break down.” 

In Leitch, the judge found that the concerns underlying the husband’s conditions were not supported by the evidence. Further, the Court determined that the wife’s ability to pursue her own claims under the Family Law Act would be prejudiced if the sale proceeds were not paid to her on closing. As a result, the wife was given the sole authority to sell the farm.

Spouses Jointly Involved in the Marketing and Sale of the Matrimonial Home By Default

Where a spouse has exhibited reluctance towards the sale of a matrimonial home or has been uncooperative in preparing the home for sale, a party may seek to dispense with that spouse’s consent and participation in the marketing and sale of the home. However, Courts have stated that this type of order is “an extremely serious and interventionist remedy”, given that the matrimonial home is often a couple’s most valuable asset. Such a measure is only appropriate in exceptional circumstances where there is clear evidence that a spouse has frustrated the sale by taking unreasonable positions or by engaging in a pattern of obstructionist conduct. 

Contact GDH Family Law in Vaughan for Knowledgeable Advice on the Matrimonial Home

The divorce lawyers at GDH Family Law help clients understand their entitlement to possession of the matrimonial home, including their right to share in its value. We are an innovative boutique family law firm that provides tailored legal solutions for clients in property-related disputes arising from a separation or divorce.

We proudly represent clients throughout Toronto, Maple, Concord, Woodbridge, Markham, Kleinburg, Richmond Hill, Nobleton, Newmarket, Aurora, Brampton, Caledon, Mississauga, Etobicoke, North York, Thornhill, and King City. For a free initial consultation, call 416-535-6944 or contact us online.