“Sections 2 and 3 of the Partition Act, R.S.O. c. P.4 provide as follows:
2. Who may be compelled to make partition or sale
All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.
3(1) Who may bring action or make application for partition
Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.
In Batler v. Batler (1988), 1988 CanLII 4726 (ON SC), 18 R.F.L. (3d) 211 (Ont. H.C.), Grainger J. held that a joint tenant has a prima facie right to sale prior to trial. This right exists unless the other joint tenant has made claims that would be prejudiced if the property were sold.
Grainger J. held that in order to successfully resist an application for sale, the responding party should have an order for interim exclusive possession, or be able to show that the claims he/she intends to put forward at trial will be prejudiced by an immediate sale.
The Court of Appeal addressed the issue further in both Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 30 R.F.L. (3d) 117 and Martin v. Martin (1990), 1990 CanLII 1225 (ON SC), 31 R.F.L. (3d) 210 (Ont. Ct. Gen. Div.), aff’d at (1991), 1991 CanLII 12830 (ON SCDC), 34 R.F.L. (3d) 173 (Ont. Div. Ct.), rev’d in part at (1992), 1992 CanLII 7402 (ON CA), 38 R.F.L. (3d) 217 (Ont. C.A.). The Court recognized that a joint owner has a prima facie right to partition and sale; however, as stated by the court in Silva at para. 23:
… where substantial rights in relation to jointly owned property are likely to be jeopardized by an order for partition and sale, an application under the Partition Act should be deferred until the matter is decided under the F.L.A. Putting it more broadly, the application under s. 2 should not proceed where it can be shown that it would prejudice the rights of either spouse under the F.L.A.
In Martin, the Ontario Court of Appeal confirmed that the sale of the matrimonial home prior to trial should not be made as a matter of course. At para. 26:
Although there is clear jurisdiction under the Partition Act to order the sale of the parties’ matrimonial home, I do not wish to be taken to have endorsed the wholesale issuance of these orders. In my view, an order directing the sale of the 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 the matrimonial home made before the resolution of Family Law Act, 1986 issues (particularly the determination of the equalization) should not be made as a matter of course. See Binkley v. Binkley (1988), 1988 CanLII 8717 (ON CA), 14 R.F.L. (3d) 336 (Ont. C.A.). In addition, spousal rights of possession (s. 19) and any order for interim exclusive possession should be taken into account.
In assessing and guarding against potential prejudice, the court must take a realistic view of the potential impacts of a sale — both positive and negative — in relation to the interests of both joint tenants. Where the financial or other circumstances of the parties are such that a sale would be the inevitable result at trial, there is little justification for delaying the sale. See Zargar v. Zarrabian, 2016 ONSC 2900 (Ont. S.C.J.); Giglio v. Giglio, 2015 ONSC 8039 (Ont. S.C.J.); Keyes v. Keyes, 2015 ONSC 1660 (Ont. S.C.J.).
The court must be mindful of the whole of the proceeding, and the need to achieve a final resolution for the family as fairly and expeditiously as possible See Kereluk v. Kereluk 2004 CanLII 34595 (ON SC), [2004 CarswellOnt 4332 (Ont. S.C.J.)], 2004 CanLII 34595.
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. See Goldman v. Kudeyla, 2011 ONSC 2718 (Ont. S.C.J.).
A pending equalization claim may also be relevant. While the court cannot compel one joint tenant to sell to the other, or give either joint tenant a right of first refusal, a recipient of an equalization payment may propose to set that entitlement off against their former spouse’s share of the equity in the home. If a sufficiently particularized proposal seems viable, a sale should be delayed to allow proper consideration of that option. See Chaudry v. Chaudry, 2012 ONSC 2149 (Ont. S.C.J.).”