“Ms. Balmir has a prima facie right to an order for partition and sale of the matrimonial home pursuant to sections 2 and 3 of the Lands Act , RSO 1990, c P.4 . I am required to order the sale unless Mr. Balmir demonstrates that such an order should not be made and that there has been malicious, vexatious, or oppressive conduct on the part of Ms. Balmir in relation to the sale: Marchese v. Marchese, 2019 ONCA 116, para. 5. The prima facie right to partition or sale should not be impeded lightly: Arlow v. Arlow (1991), 1991 CanLII 12940 (ON CA) , 33 RFL (3d) 44 (Ont. CA), aff’g 1990 CanLII 12267 (ON SC) , 27 RFL (3d) 348 (Ont. Dist. Ct).
In Sanvictores v. Sanvictores, 2022 ONSC 2673, this court provided the following helpful guidance regarding the sale of the marital home in paragraph 13:
The issuance of an order for the sale of a jointly held property under sections 2 and 3 of the Partition Act , RSO 1990, c. P.4, is governed by the following principles:
1) A court is required to compel the partition and sale of a jointly held property unless the opposing party has shown that there is malicious, vexatious, or oppressive conduct on the part of the moving party in relation to the sale itself: Marchese v. Marchese, 2019 ONCA 116, para. 5.
2) There is some overlap in the scope of the terms “malicious” or “malice”, “vexatious”, and “oppressive”. “Malice” arises when a step is taken for an improper purpose including spite, ill-will, vengeance, or to gain a private collateral advantage. A step may be viewed as “vexatious” when it is taken to harass or oppress others rather than to assert a legitimate right. The sale of a matrimonial home is “oppressive” when the co-tenant who opposes the sale will suffer serious hardship if the matrimonial home is sold: MacDonald v. MacDonald (1976), 1976 CanLII 845 (ON SC) , 14 OR (2d) 249 (Div. Ct.), at p. 254.
3) 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, RSO 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 OR (3d) 436 (CA), at p. 445; Martin v. Martin (1992), 1992 CanLII 7402 (ON CA), 8 OR (3d) 41 (CA), 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] OJ No. 414 (CA), at para. 3; Gibson v. Duncan, 2013 ONSC 5377, at paras. 20-23).
4) The court does not have jurisdiction to impose a right of first refusal or force parties into the buyout of a property: see Gertley v. Gertley, 2022 ONSC 1750, para. 13; Laurignano v. Laurignano, 2009 ONCA 241, 65 RFL(6th) 15;
Also see Howard v. Howard , 2022 ONSC 6915, Dhaliwal v. Dhaliwal, 2020 ONSC 3971, 42 RFL (8th) 321; and, RL v. MF, 2022 ONSC 1677.
The courts have rejected provisional motions for pretrial sale when there are circumstances such as the possibility of a trial within a short time (Walters v. Walters, 1992 CanLII 8599 (ON SCDC), prejudice on equalization payment (Kereluk v. Kereluk, 2004 CanLII 34595 (ON SC)), or the need to preserve the residence of a spouse or vulnerable child who might well retain the home in the case (Stothers v. Kazeks, 2023 ONSC 5021).
Where a partition and sale order is likely to affect substantial rights in jointly owned property, an application under the Partition of Lands Act should be deferred until the matter is decided under the Family Law Act : Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 OR (3d) 436 (CA), at page 445; Martin v. Martin (1992),1992 CanLII 7402 (ON CA), 8 OR (3d) 41 (CA), at para. 26.