“Generally, the court’s discretion to decline to order the partition or sale of a jointly owned property under s. 2 of the Partition Act is relatively narrow. That is because an owner has a prima facie right to sell a jointly owned property. As a result, the court must ordinarily order the sale unless the moving party has behaved maliciously, oppressively or with a vexatious intent towards the responding party: Latcham v. Latcham, 2002 CanLII 44960 (ON CA), [2002] O.J. No. 2126, 27 R.F.L (5th) 358 (C.A.), at para. 2.
The court’s authority to decline to order a sale is more expansive in family cases, given the potentially competing interests that co-owners might have under the Family Law Act, R.S.O., 1990, c. F.3, and the risk that those interests could be prejudiced by the sale: see Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (C.A.); Goldman v. Kudeyla, 2011 ONSC 2718, at para. 17; Parent v. Laroche, 2020 ONSC 703, at para. 11. As Justice McGee explained in Goldman, at paras. 18-19:
[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) 1991 CanLII 12940 (ON CA), 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.
As the quoted passage from Goldman suggests, the cases have come to recognize the best interests of the children as an important consideration in deciding whether to grant a motion to compel the sale of a family home: Dhaliwal v. Dhaliwal, 2020 ONSC 3971, at para. 16q; R.L. v. M.F., 2022 ONSC 1677, at paras. 31-32; Kaing v. Shaw, 2017 ONSC 3050, para. 34.”