“The relevant provisions of the Partition Act and the FLA must be read together. Where substantial rights in relation to jointly owned property are likely to be jeopardized by an order for sale, the matter should be deferred until the issues are decided under the FLA. However, if the sale will not prejudice either spouse’s claim with respect to the home under the FLA, there is no reason to delay a sale: Silva v. Silva, 1990 CanLII 6718 (ON CA); 1 O.R. (3d) 436: 75 D.L.R. (4th) 415.
An owner of a home has a prima facie right to sale: Davis v. Davis, 1953 CanLII 148 (ON CA), [1954] O.R. 23 (C.A.); Brienza v. Brienza, 2014 ONSC 6942 (CanLII), at para. 22. A matrimonial home may be sold without spousal consent when the evidence does not support a realistic need to maintain the house as a home for the benefit or stability of the children pending trial: Jiang v. Zeng, 2019 ONSC 1457 (CanLII), at paras. 50 and 51.
In Jiang McGee J. stated, at paras. 36 – 38:
Exclusive possession is an Order only available pending the sale of a matrimonial home. An Order for exclusive possession cannot be used to frustrate an owner’s prima facie right to the sale of the home. The sale of the matrimonial home can be ordered prior to Trial on a motion, or at Trial.
The sale of a matrimonial home will generally be ordered on a motion unless there are children residing in the home, per section 24(3)(a) of the Family Law Act, or, an entitlement under the Act that would be otherwise defeated.
The purpose of section 24(3) is to preserve stability and continuity in the lives of children while their parents’ legal issues are determined.”