“Sections 21(1) and 23 of the Family Law Act provide as follows:
21(1) No spouse shall dispose of or encumber an interest in a matrimonial home unless,
(a) the other spouse joins in the instrument or consents to the transaction;
(b) the other spouse has released all rights under this Part by a separation agreement;
(c) a court order has authorized the transaction or has released the property from the application of this Part; or
(d) the property is not designated by both spouses as a matrimonial home and a designation of another property as a matrimonial home, made by both spouses, is registered and not cancelled.
23 The court may, on the application of a spouse or person having an interest in property, by order,
(a) determine whether or not the property is a matrimonial home and, if so, its extent;
(b) authorize the disposition or encumbrance of the matrimonial home if the court finds that the spouse whose consent is required,
(i) cannot be found or is not available,
(ii) is not capable of giving or withholding consent, or
(iii) is unreasonably withholding consent,
subject to any conditions, including provision of other comparable accommodation or payment in place of it, that the court considers appropriate;
(c) dispense with a notice required to be given under section 22;
(d) direct the setting aside of a transaction disposing of or encumbering an interest in the matrimonial home contrary to subsection 21(1) and the revesting of the interest or any part of it on the conditions that the court considers appropriate; and
(e) cancel a designation made under section 20 if the property is not a matrimonial home.
There is case law supporting the proposition that these provisions are used when one spouse is the title owner, and the non-titled spouse refuses to consent to a disposition. Section 23(b)(iii) has been held not to be broad enough to dispense with the consent of a spouse who is a joint owner of the matrimonial home: Sullivan v. Sullivan, 1986 CanLII 6333 (ON SC), [1986] O.J. No. 1896, 2 R.F.L. (3d) 251 (Ont. Dist. Ct.)).; Flores v. Flores 2020 CarswellOnt 13748, 2020 ONSC 5809, 325 A.C.W.S. (3d) 183 at para. 49; Nani v. Nani 2021 CarswellOnt 2714, 2021 ONSC 1368, 334 A.C.W.S. (3d) 155 at para. 97. Rather, “[w]hen it comes to spouses who jointly own the matrimonial home, the Partition Act … gives the court jurisdiction to deal with a proposed sale by one spouse where the other objects”: Nani at para. 98. Other case law relies upon both the Partition Act and s. 23 of the Family Law Act to effect a sale in appropriate circumstances: Bailey-Lewis v. Lewis 2020 CarswellOnt 17755, 2020 ONSC 7525, 328 A.C.W.S. (3d) 795.
Section 2 of the Partition Act provides as follows:
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.
The court in a family law proceeding may grant a joint tenant an order for partition and sale under s. 2 of the Partition Act unless:
a. an interim sale will prejudice a substantial right of one of the parties under the Family Law Act(Silva v. Silva 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436, [1990] O.J. No. 2183 para. 23) or
b. the responding partydemonstrates that the applicant’s conduct in seeking the order is malicious, vexatious or oppressive (Latcham v. Latcham 2002 CanLII 449060 (ON CA), [2002] O.J. No 2126 para. 2).”