“Sections 2 and 3 of the Partition Act state that all joint tenant owners of a property may be compelled to sell the property, and that any person interested in the land may bring an action or make an application for the partition and sale of the land.
A joint tenant has a prima facie right to partition and sale. There is a corresponding obligation on a joint tenant to permit partition and sale: Davis v. Davis, 1953 CanLII 148 (ON CA), [1954] O.R. 23 (C.A.), at p. 29.
Claims made under the Partition Act should not proceed where it can be shown that to do so would prejudice the rights of either spouse under the Family Law Act: Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (C.A.), at p.445. In Silva, the Court of Appeal for Ontario also found that a spouse’s not yet adjudicated claim for division of net family property was not a sufficient reason to delay the sale of the home.
The Court of Appeal for Ontario stated in Latcham v. Latcham (2002), 2002 CanLII 44960 (ON CA), 27 R.F.L. (5th) 358 (Ont. C.A.), at paras.1-3, that the discretion to refuse a joint owner’s request for the sale of land under the Partition Act is narrow. It requires malicious, vexatious or oppressive conduct.
Justice McGee summarized the test to be met by the resisting party to defeat a motion for partition and sale in a family law context in Goldman v. Kudeyla, 2011 ONSC 2718, 5 R.F.L. (7th) 149, at para. 18:
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.
The Court of Appeal for Ontario has defined a “prima facie” case as evidence made by a party which, if believed, establishes the claim being made: Peel Law Association v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 81, at para. 65.
The court may transfer a party’s interest in the matrimonial home in full or partial satisfaction of an equalization or spousal support payment under s.9(1)(d)(i) of the Family Law Act. If the party opposing the sale establishes a prima facie case for this type of claim, this circumstance may impact a substantial right sufficient to postpone the sale of jointly held property prior to trial: Chaudry v. Chaudry, 2012 ONSC 2149, 19 R.F.L. (7th) 478, at para. 25.
Timing can be a relevant consideration in dealing with a motion for sale at a temporary stage. The availability of a trial within a short period might reduce the pressure for an immediate sale: Goldman, at para. 19.
The Court of Appeal for Ontario has confirmed that prejudice to the parties must be considered before an order for partition and sale is made: Punit v. Punit, 2014 ONCA 252, 43 R.F.L. (7th) 84, at para. 21. In Punit, at paras. 22-23, the order of the motions judge for partition and sale of the matrimonial home was set aside because:
a) There was a trial date in the very near future;
b) There was no evidence that the moving party required funds from the house for living expenses; and
c) The expenses of maintaining the home were being met by the responding spouse.”