“One party should not be able to prevent the other party from accessing the capital tied up in the property. Here, Mr. Haaksma should not be able to unilaterally decide that Ms. Taylor must rent while her capital is tied up in the matrimonial home.
“There is nothing in the Family Law Act to suggest that, absent consent, one spouse should have a special right to purchase the matrimonial home”: Martin v. Martin (1992), 8 O.R. (3d) 41, 1992 CanLII 7402 (C.A.). That is not to say that orders for the sale of a matrimonial home are made as a matter of course:
[A]n order directing the sale of a matrimonial home before trial should only be made in cases where, in all of the circumstances, such an order is appropriate. Orders for the sale of a matrimonial home made before the resolution of Family Law Act issues (particularly the determination of the equalization payment), should not be made as a matter of course.
In this regard I find Justice McGee’s decision in Goldman v. Kudeyla, supra, instructive, at para. 18-20:
To make a pre-trial order for the sale of a matrimonial home the court must first determine whether the resisting party has established a prima facie case that he or she is entitled to a competing interest under the Family Law Act. If not, then the right to sale prevails. If so, then the motion for sale is denied unless the selling party can demonstrate that the sale would not prejudice the rights of the resisting party.
There have been a number of cases in which the Court has denied an interim motion for sale prior to trial such as Arlow v. Arlow (1990) 1991 CanLII 12940 (ON CA), 33 R.F.L. (3rd) 44 (OCA,) Walters v. Walters 1992 CanLII 8599 (ON SCDC), 1992 CarswellOnt 811 and more recently, Kereluk v. Kereluk 2004 CanLII 34595 Ontario S.C.J. In each case there were compelling circumstances in which one or both tests favoured the resisting party, such as the availability of trial within a short period, prejudice on the equalization payment, or the need to preserve the residence for a vulnerable spouse or child who might well retain the home in the cause.
Issues arising from relationship breakdown are by their very nature inextricably intertwined. I agree with Justice Wright’s reasoning in Walters supra, confirmed in Kereluk, supra that orders for the sale of the home should not be made as a matter of course. One must always be mindful of the whole of the proceeding and the need to move forward as fairly and expeditiously as possible. At the same time, determinations must have a starting point. The sale of the matrimonial home is often the most appropriate catalyst to effect the equal division of family assets and establish post separation parenting patterns.”