“This is also a motion for the sale of the home under s. 3 of the Partition Act which read as follows:
3. (1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.
The case law generally favours an order for partition and sale of a home by a co-tenant unless the opposing party can demonstrate prejudice. The onus is on the party resisting the sale to show prejudice, and that has been defined as being malicious, vexatious or oppressive conduct by the moving party seeking the sale. Alternatively, partition and sale should not be granted where the sale will cause hardship to the responding party which amounts to oppression: see Afolabi v. Fala, 2014 ONSC 1713 at para. 29 and 33 to 35. The standard of malicious, vexatious or oppressive conduct has been confirmed by the Court of Appeal in Latcham v. Latcham (2002), 2002 CanLII 44960 (ON CA), 27 R.F.L. (5th) 358 (Ont. C.A.) where the court confirmed the high threshold required to resist the sale of a home as follows [at para. 2]:
That standard, as the Divisional Court noted, was reaffirmed by this court in Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (Ont. C.A.) and requires malicious, vexatious or oppressive conduct. This narrow standard for the exercise of discretion flows from a joint owner’s prima facie right to partition.
There is, however, authority that a sale of the home will not be ordered where it cannot be demonstrated that the moving party would benefit from the sale, but these results appear to have occurred only where a trial is close at hand: see Ludmer v. Ludmer, 2012 ONSC 4478 and Magnella v. Federico, 2012 ONSC 5696. Barring this, malicious, vexatious or oppressive conduct must be proven by the party resisting the sale. In fact, it might be interpreted as being oppressive conduct to request an order for the sale of a home when a trial is only months away; that is certainly not the case here, and although an income report was obtained in June, 2016, the parties still have not moved this matter along and now a further income analysis will be necessary to confirm the respondent’s 2016 income. The trial of this matter appears to be in the distant future.”