When couples part ways, the shared ownership of a matrimonial home often becomes a contentious issue. In Ontario, the law recognizes two forms of co-ownership: joint tenancy and tenancy in common. Joint tenancy implies that both parties own the entire property, with the surviving partner gaining full ownership upon the death of the other through the right of survivorship. Tenancy in common, however, allows each individual to own a specified share of the property, without any right of survivorship.
Common issues that arise in many separations are whether one spouse can force the sale of the matrimonial home or whether one spouse can purchase the other spouse’s interest in the matrimonial home. The first step would be to have discussions with the other party to explore the possibility of one spouse purchasing the other’s interest in the property. The challenge arises when both parties must agree on a value. If there is a mutual agreement on the valuation, that’s ideal. In the event of a disagreement, appointing an appraiser is advisable. However, should either party dispute the appraised value, it leads back to square one.
It is not uncommon for one partner, especially the one who has relocated after a separation, to push for the sale of the property, while the other prefers to remain in the home until all the issues are settled. The law empowers any co-owner to seek a court order to sell the property, regardless of the type of co-ownership. It is trite law that a joint owner has a prima facie right to an order for partition and sale of a matrimonial home under the Partition Act. The court will generally grant such an order unless the opposing party has shown that there is malicious, vexatious, or oppressive conduct on the part of the moving party in relation to the sale itself. Furthermore, in the context of family law proceedings, the court may exercise its discretion to deny a sale of a matrimonial home where the sale would prejudice one party’s claims under the Family Law Act or the sale would not be in the best interests of the children.
Family law disputes are generally resolved comprehensively, encompassing home ownership, property division, child and spousal support and parenting arrangements. The resolution process can be delayed, particularly when transferring property ownership or initiating its sale. The partner who has moved out may need their share of the property’s equity to fulfill financial obligations or to secure new housing. Conversely, the partner staying in the home may not feel the same urgency to sell.
Court motions to sell a property can be detailed outlining the listing price, the necessity for both parties to agree on a real estate agent, the allocation of sale proceeds, pre-sale repairs and the management of property showings. Occupants may be mandated to maintain the property’s appearance, safeguard its contents, and facilitate the sale process. Legal counsel will advise on the specific aspects to focus on, which can vary depending on the case. For instance, if the occupant lets the property deteriorate, obstructs showings or frustrates the sale process, further court intervention may be required. However, most parties eventually comply to maximize the property’s sale value and the resulting proceeds.
To oppose a sale motion, a party must demonstrate malicious intent, oppression, or vexatious behavior by the petitioner. This could involve proving that the forced relocation would cause significant financial distress or displace someone from a home adapted for a disability. The threshold for such opposition is high; inconvenience or the need to relocate children from a familiar setting is typically insufficient. If a sale could potentially affect a party’s entitlement to a property settlement, the court might still authorize the sale but make special arrangements for the proceeds, such as holding a portion in the trust account of a real estate attorney until a final agreement is reached.
In Ontario, the law allows a co-owner to secure an order to compel a sale under most conditions. This can serve as a powerful bargaining tool for the individual who wants to sell. Typically, this matter is settled as part of a detailed Separation Agreement or court order. However, if an agreement cannot be reached, the court system enables the involved parties to seek a resolution they could not achieve through mutual consent.
This blog post was written by Alison Boyce, Practice Lead of the Family Law team. She can be reached at 613-566-2081 or at [email protected].
