“The court should exercise caution in ordering the sale of a matrimonial home before trial and before the resolution of the property equalization issues: Martin v. Martin 1992 CanLII 7402 (ON CA):
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. 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.
The principles applicable to the judicially ordered sale of a matrimonial home were summarized by Pazaratz J. in Dhaliwal v. Dhaliwal, 2020 ONSC 3971 (CanLII), at para. 16. Out of the many factors discussed by Pazaratz J., the following are relevant:
(l) The court must consider the impact of a proposed sale on children or a vulnerable spouse — including the emotional impact, and the fundamental need to ensure that they have appropriate housing. Delongte v. Delongte 2019 ONSC 6954 (SCJ); Kaing v. Shaw 2017 ONSC 3050 (SCJ). The availability and affordability of alternate housing must be considered. As part of the analysis, support obligations may need to be co-ordinated – even on a temporary basis – to ensure that any party displaced by a sale will have the resources to arrange reasonable replacement accommodation.
(m) Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course. Fernandes v Darrigo 2018 ONSC 1039 (SCJ). 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. Kereluk v. Kereluk, 2004 CanLII 34595 (SCJ).
In Hutchison-Perry v. Perry, 2019 ONSC 4381 (CanLII), Faieta J. held:
[37] Additional considerations apply when a spouse seeks an order for the sale of a matrimonial home prior to the final determination of the spouses’ claims under the Family Law Act, R.S.O. 1990. c. F.3, (“FLA“). In such case, an application under the Partition Act should not proceed when the opposing spouse shows that the sale would prejudice the rights of a spouse under the FLA or a court order (see Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (C.A.), at p. 445; Martin v. Martin (1992), 1992 CanLII 7402 (ON CA), 8 O.R. (3d) 41 (C.A.), at para. 26 or, at the very least, that the opposing spouse’s arguable claims under the FLA would be prejudiced (see Binkley v. Binkley, [1988] O.J. No. 414 (C.A.), at para. 3; Gibson v. Duncan, 2013 ONSC 5377, at paras. 20-23)”