Forcing the Sale of the Family Home Before Trial? Easier said than done

Apart from children’s issues, one of the most contentious issues in family litigation is figuring out what to do with the family home. Someone has to move out, and debt and equity must be dealt with. Family litigants are often, quite understandably, eager to move on with life. Family lawyers are thus often asked about forcing the sale of the family home before trial.

The Ontario Superior Court of Justice just delivered a new decision on this issue in Mitchell v. Leach et al, 2015 ONSC 6041.

Husband and wife were both of advanced age. Husband purchased the home decades prior to marriage. The parties married, wife moved in, and moved her disabled daughter into the basement suite at heavily discounted rent. There were two marriage contracts; one would affirm wife had no interest in the home, the other granted her an interest and made her a joint tenant. The validity of both contracts was seriously disputed and required trial.

Husband moved for an order for a forced sale under the Partition Act. His motion was dismissed.

The Court’s analysis teaches Ontario family lawyers how to handle forced sale motions.

First, section 2 of the Partition Act provides that all joint tenants, tenants in common, etc may be compelled to make or suffer partition or sale of land regardless of whether the estate is legal and equitable, or equitable only.

Second, case law reins in section 2:

Silva v. Silva (1990) CanLII 5400 (BCCA)

  • A joint tenant has a prima facie right to partition and sale.
  • But, “an application under section 2 should not proceed where it can be shown that it would prejudice the rights of either spouse under the Family Law Act”.

Davis v. Davis 1953 CarswellOnt 108

  • “there is a prima facie right, which will not be denied unless there has been vexatiousness or oppressiveness, and that it is the conduct of the applicant for partition that must be considered in this connection”.

Greenbanktree Power Corporation v. Coinamatic Canada Inc 2004 CarswellOnt 5407

  • Oppressiveness includes hardship.
  • Partition and sale can be refused because hardship would be of such a nature as to amount to oppression.

Garfella Apartments Inc. v. Chouduri 2010 ONSC 3413

  • The party alleging oppression has the onus to prove it on a balance of probabilities.
  • Partition and sale can be refused in circumstances of malice, oppression, and vexatious intent.

In Davis, the sale caused inconvenience and financial difficulty, but not oppression. There was no vexatious intent. An order for partition and sale was made.

In Klakow v. Klakow 1972 CarswellOnt 150, an order for sale was not made because the party resisting the sale was blind, unemployable, and had nowhere else to live. This hardship amounted to oppression.

In Mitchell v. Leach, partition and sale was refused because of the uncertainty surrounding the marriage contracts. If wife was, in fact, a joint tenant, she could leverage her equity in the home to buy husband’s interest, thereby allowing her, and her disabled daughter, to remain in the home.

The take away point is that orders for sale and partition are not lightly granted and Ontario family lawyers must assess the situation very carefully before bringing the motion.

Jeffrey L. Hartman

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