“There is nothing in the Family Law Act to suggest that, absent consent, one spouse should have a special right to purchase the matrimonial home. As a matter of general principle, while a matrimonial home occupies a special and separate place in the statutory scheme established by the Family Law Act, once the matrimonial home is ordered to be sold, each spouse is entitled to receive fair market value for his or her interest in it. See Batler v. Batler , supra.
In Dibattista (in trust) v. Menecola (1990), 1990 CanLII 6888 (ON CA), 75 O.R. (2d) 443, 74 D.L.R. (4th) 569 (C.A.), this court held that in proceedings taken under the Partition Act, neither party should be given a right of first refusal, if the property (held by the parties as tenants in common) were to be ordered to be sold. Brooke J.A. dealt with the right of first refusal issue, in this way, at p. 449 O.R., p. 575 D.L.R.:
Neither party can be given a right of first refusal. Both parties are free to bid at such sale and can be expected to act to protect their investment.
In my opinion, a right of first refusal, such as was granted to the respondent, is a substantive right. It is a right which has some clear, albeit difficult to quantify, economic value. It is a right which falls outside the boundaries of what is ancillary to, or what is reasonably necessary to implement the order for sale of the matrimonial home.
A right of first refusal will most often work to discourage other interested buyers. If a spouse is granted a right of first refusal, the effect of it is to remove that spouse from the competitive market for the matrimonial home. The existence of a right of first refusal distorts the market, because it provides a benefit to one party, which eliminates the need for that party to compete with any other interested purchaser. Finally, if the spouse with a right of first refusal is in possession, the existence of the right of first refusal will provide a disincentive to maintaining the property, so as to increase its value and saleability. I acknowledge that, in some degree, the same disincentive may operate if a spouse in possession, without a right of first refusal, wants to buy the matrimonial home. In my view the motions court judge erred in concluding that the right of first refusal would not prejudice Mrs. Martin.”