“The applicable principles to be considered a motion for sale of jointly owned properties during family law proceedings were set out in Dhaliwal v. Dhaliwal (2020) ONSC 3971, at para. 16:
a. Section 2 of the Partition Actempowers the court to order the sale of a jointly owned property, including a matrimonial home.
b. A joint tenant has a prima facie right to an order for the partition or sale of property held with another joint tenant.
c. A court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made.
d. The other joint tenant has a corresponding obligation to permit the sale. These are fundamental rights flowing from joint tenancy.
e. The onus is on the party who opposes a sale to establish that there is a sufficient reason, recognized in law, why the court should exercise its discretion to refuse a sale.
f. Generally, the party opposing the sale must show malicious, vexatious or oppressive conduct relating to the partition and sale issuein order to avoid the sale.
g. Each case must be considered on its own facts. The court must consider all relevant factors in exercising its discretion.
h. In family law cases, an order under the Partition Actshould generally not be made until any dispute related to the property has first been determined.
i. The Family Law Actdoes not displace the Partition Act. But in family cases a partition application should generally not be granted where it can be shown that a legitimate family law claim would be unfairly prejudiced.
j. 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, and the family as a whole. 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.
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m. Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course. 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.
n. 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.
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r. A pending equalization claim may also be relevant. The court cannot compel one joint tenant to sell to the other. Nor can it give either joint tenant a right of first refusal. But 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 — and especially if it would benefit a child — sale should be delayed to allow proper consideration of that option.
s. The court must consider and attempt to guard against potential prejudice. Are there realistic issues or claims yet to be determined on a final basis, which would be prejudiced or precluded if a property is ordered to be sold at the temporary stage? [Citations omitted.]
The Divisional Court, in Nogueira v. Nogueira, 2021 ONSC 7564, at para. 3, recently cited Dhaliwal with approval.
Neither Dhaliwal not Nogueira involved farms, but the above principles remain applicable here. However, s. 11(1) applies to farms so additional considerations are in play.”