“A joint owner of a property has a prima facie right to have the property sold. However, when the property is a matrimonial home, one owner’s right to sell it is subject to any competing right of the other owner under the Family Law Act that would be defeated if the property were sold: Mignella, para. 23, Goldman v. Kudeyla, 2011 ONSC 2718, at para. 17.
As McGee J. noted in Goldman at para. 19, there have been many cases where the court has denied interim motions for sale. In each, there were compelling circumstances favouring the party resisting the sale, such as the availability of trial in a short period of time, prejudice to the resisting party’s right to an equalization payment, or the need to preserve the residence for a vulnerable spouse or child.
McGee J. also noted that orders for the sale of the home should not be made as a matter of course. She wrote, at para. 20:
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.”