“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: Lalonde v. Agha, 2021 ONSC 5223.
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: Martin v. Martin, 1992 CanLII 7402 (ON CA), [1992] O.J. No. 656. As the court stated in Hutchison-Perry v. Perry, 2019 ONSC 4381, at para. 37:
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…In such a 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…or, at the very least, that the opposing spouse’s arguable claims under the FLA would be prejudiced…[citations omitted]
The relevant considerations as summarized in Dhaliwal v. Dhaliwal, 2020 ONSC 3971, at para. 16 in the circumstances of this case are:
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- Where it is evident at the temporary motion stage that monthly carrying costs are currently unsustainable, it is inappropriate to indefinitely perpetuate financial hardship for the entire family.
- The court must consider the impact of a proposed sale on children or a vulnerable spouse, including emotional impact. The fundamental need to ensure that they have appropriate availability and affordability of alternate housing must be considered.
- Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course. 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.
- The availability of a trial within a short period might reduce the pressure for an immediate sale.
- A request for a 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 while a school year is in session.
- The stage of a child’s academic progress may be relevant.
- The mere existence of children in a household is not in itself sufficient to oppose a sale; the party opposing the sale must establish a likely negative impact more serious than the inevitable adjustments and disruptions which all families face when parents separate.
- 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.”
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