“In Goldman v. Kudelya (2011), 5 R.F.L. (7th) 149, 2011 ONSC 2718 McGee J. ordered the sale of a matrimonial home in circumstances where the best interests of a child were alleged to be involved.
[17] A property owner, whether the holder of an exclusive interest or a joint interest has a prima facie right to sale. When the property consists of an interest in a matrimonial home, that prima facie right is subject to any competing interests under the Family Law Act that would otherwise be defeated.
[18] To make a pre-trial order for the sale of a matrimonial home the court must first determine whether the resisting party has established a prima facie case that he or she is entitled to a competing interest under the Family Law Act. If not, then the right to sale prevails. If so, then the motion for sale is denied unless the selling party can demonstrate that the sale would not prejudice the rights of the resisting party.
[19] There have been a number of cases in which the court has denied an interim motion for sale prior to trial such as Arlow v. Arlow (1990) 33 R.F.L. (3rd) 44 (OCA,) Walters v. Walters 1992 CanLII 8599 (ON SCDC), 1992 CarswellOnt 811 and more recently, Kereluk v. Kereluk, 2004 CanLII 34595 Ontario S.C.J. In each case there were compelling circumstances in which one or both tests favoured the resisting party, such as the availability of trial within a short period, prejudice on the equalization payment, or the need to preserve the residence for a vulnerable spouse or child who might well retain the home in the cause.
In Goldman, the husband (who unsuccessfully opposed the sale) argued that the best interests of the parties’ daughter (then four years, three months old) would be harmed. There was, however, and as McGee J. noted, no evidence that the child was bonded to the home, or that its sale would harm her.
In this case the wife asserts that the children have been traumatized by their parents’ separation, and will be devastated by the home being sold. They do not wish to spend time with their father at the residence he shares with his new partner, and the OCL has accepted its appointment to represent their interests. Beyond these rather bald allegations though, the evidentiary record about the children’s best interests is lacking. The circumstances of this family are very different from those in Petit v. Petit, 2016 ONSC 849, another case upon which the wife relies, and in respect to which there was a robust record of likly emotional harm to the children if their family home had been sold.
I agree with the views expressed by McGee J. in Goldman,
[20] Issues arising from relationship breakdown are by their very nature inextricably intertwined. I agree with Justice Wright’s reasoning in Walters supra, confirmed in Kereluk, supra that orders for the sale of the home should not be made as a matter of course. One must always be mindful of the whole of the proceeding and the need to move forward as fairly and expeditiously as possible. At the same time, determinations must have a starting point. The sale of the matrimonial home is often the most appropriate catalyst to effect the equal division of family assets and establish post separation parenting patterns.”