“Sections 2 and 3 of the Partition Act govern the partition and sale of property held in a joint tenancy or as tenants in common. A joint tenant has a prima facie right to an order for partition and sale unless the joint tenant opposing the sale can establish that the other party is seeking to do so for malicious, vexatious or oppressive reasons.
In Marchese v. Marchese, 2019 ONCA 116, the appellant wife argued that the trial judge erred in ordering the sale of the parties’ matrimonial home. The Court of Appeal disagreed, stating at para. 5:
As the trial judge correctly stated, the respondent had a prima facie right to an order for the partition and sale of the matrimonial home. As a result, the trial judge was required to order the sale unless the appellant demonstrated that such an order should not be made and showed there was malicious, vexatious or oppressive conduct on the part of the respondent in relation to the sale itself. The trial judge found that the appellant did not allege there was any such conduct nor did she put forward any other legal basis to preclude the sale of the matrimonial home.
The respondent argues that that decision relates to an order made following a trial. He relies on the decision in Martin v. Martin, 1992 CanLII 7402 (ON CA), [1992] O.J. No. 656, where Osborne J.A. speaking for the court states, at para. 26:
Although there is clear jurisdiction under the Partition Act to order the sale of the parties’ matrimonial home I do not wish to be taken to have endorsed the wholesale issuance of these orders. In my view, an order directing the sale of a matrimonial home before trial should only be made in cases where, in all of the circumstances, such an order is appropriate. Orders for the sale of a matrimonial home made before the resolution of Family Law Act issues (particularly the determination of the equalization payment), should not be made as a matter of course. See Binkley v. Binkley (1988), 1988 CanLII 8717 (ON CA), 14 R.F.L. (3d) 336 (Ont. C.A.). In addition, spousal rights of possession (s. 19) and any order for interim exclusive possession should be taken into account.
The respondent now seeks an order of exclusive possession of the home to challenge the motion brought by the applicant seeking the partition and sale of the home.
Martin v. Martin was considered in Hutchison-Perry v. Perry, 2019 ONSC 4381. In that decision, at para. 37, the court says:
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, R.S.O. 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 O.R. (3d) 436 (C.A.), at p. 445; Martin v. Martin (1992), 1992 CanLII 7402 (ON CA), 8 O.R. (3d) 41 (C.A.), 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] O.J. No. 414 (C.A.), at para. 3; Gibson v. Duncan, 2013 ONSC 5377, at paras. 20-23).
A helpful summary of the relevant legal principles was reviwed by Pazaratz J. in Dhaliwal v. Dhaliwal, 2020 ONSC 3971, at para. 16. Below are some of those principles which are applicable in the circumstances of this case:
…
k. More to the point, where it is evident at the temporary motion stage that monthly carrying costs are currentlyunsustainable, it is inappropriate to indefinitely perpetuate financial hardship for the entire family. Quite commonly, house expenses which were barely affordable when the family unit was intact immediately become unaffordable once the same income has to fund two separate households. Sometimes harsh new realities need to be faced sooner as opposed to later – in order to avoid even more painful consequences such as power of sale proceedings or even bankruptcy.
l. The court must consider the impact of a proposed sale on children or a vulnerable spouse – including the emotional impact, and the fundamental need to ensure that they have appropriate availability and affordability of alternate housing must be considered. As part of the analysis, support obligations may need to be co-ordinated – even on a temporary basis – to ensure that any party displaced by a sale will have the resources to arrange reasonable replacement accommodation.
m. Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course. Fernandes v Darrigo, 2018 ONSC 1039 (SCJ). The court must be mindful of the whole of the proceeding, and the need to achieve a final resolution for the family as fairly and expeditiously as possible. Kereluk v. Kereluk, 2004 CanLII 34595 (SCJ).
n. Timing can be a relevant consideration in dealing with a motion for sale at a temporary stage. The availability of a trial within a short period might reduce the pressure for an immediate sale. Goldman v. Kudeyla, 2011 ONSC 2718 (SCJ).
o. On the other hand, a request for sale during summer months may entail some timeliness if seasonal market opportunities are favourable; or to reduce the likelihood of a child having to change residence (and possibly catchment area) while a school year is in session.
p. The stage of a child’s academic progress might also be relevant. Sale might be delayed if it would allow a child to complete a certain grade level before an inevitable switch to another school. On the other hand, immediate sale might be more appropriate if the child happens to be transitioning to a new school in any event.
q. But the mere existence of children in a household is not in itself a sufficient basis to oppose a sale. A generic statement that children enjoy living in their current house or that they will be unhappy if they have to move, is not sufficient. The party opposing a sale must establish a likely negative impact more serious than the inevitable adjustments and disruptions which all families face when parents decide to separate.
r. A pending equalization claim may also be relevant. The court cannot compel one joint tenant to sell to the other. Martin v. Martin, 1992 CanLII 7402 (ON CA). Nor can it give either joint tenant a right of first refusal. Dibattista v. Menecola, 1990 CanLII 6888 (ON CA). But a recipient of an equalization payment may propose to set that entitlement off against their former spouse’s share of the equity in the home. If a sufficiently particularized proposal seems viable – and especially if it would benefit a child – sale should be delayed to allow proper consideration of that option. Chaudry v. Chaudry, 2012 ONSC 2149 (SCJ).
s. The court must consider and attempt to guard against potential prejudice. Are there realistic issues or claims yet to be determined on a final basis, which would be prejudiced or precluded if a property is ordered to be sold at the temporary stage?”