Written on behalf of Shariff & Associates

Divorce can be a tumultuous journey, fraught with emotional and financial challenges. Amidst the important decisions that need to be made, selling the matrimonial home often emerges as a significant, daunting, and sometimes contentious task, as the matrimonial home is often the parties’ most valuable asset.

This blog will delve into the intricacies of selling the matrimonial home after divorce in Ontario. From understanding your legal obligations and rights, to navigating the emotional terrain of saying goodbye to the family home, this blog post aims to provide insight into when and how the sale of the matrimonial home may be forced by one of the spouses.

The Importance of the Matrimonial Home

Whether you are contemplating divorce or are currently involved in divorce proceedings, selling the matrimonial home is a significant milestone, as the home often holds a special place in the hearts and histories of couples. Therefore, when the decision to part ways is made, untangling the intricacies of homeownership becomes inevitable and can be complicated. Selling the home can stir up a range of feelings, from grief and loss to relief and liberation.

In Ontario, section 18(1) of the Family Law Act governs the division of property upon divorce and defines the matrimonial home as “[e]very property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.”

Understanding how this legislation applies to your situation is important to ensure that you are able to make informed decisions. Parties should note that factors such as the length of the marriage, financial and non-financial contributions to the home, and the presence of dependent children can all influence the division of assets and the sale of the matrimonial home.

Can a Party Force the Sale of a Matrimonial Home?

Section 3 of the Partition Act is the starting point for an analysis involving considering whether the sale of the matrimonial home can be forced by one party. Under this legislation, any party with an interest in a property may bring an application for the sale of such property. If a court considers the sale of the property to be “more advantageous” to the interested parties, it may direct that the land be sold.

Father Seeks Immediate Sale of Matrimonial Home

In the case of Monga v. Monga, the applicant father (the “father”) sought immediate sale of the matrimonial home as he required his equity from the sale to aid his financial position. The Superior Court of Justice began its analysis by referencing the Partition Act and the case of Kaphalakos v Dayal, which outlined that:

• A joint tenant has a prima facie right to an order to sell the property with another joint tenant;
• A court must order the sale unless the opposing party has established that the order should not be made; and
• In order to successfully oppose the order, the opposing party must show “malicious, vexatious or oppressive conduct” relating to the issue of the sale and not the general conduct of the party seeking to sell the property.

The Court went on to indicate that an order for the sale of the matrimonial home would be considered “malicious, vexatious or oppressive” when the sale would prejudice the opposing spouse’s potential claims under the Family Law Act, or the best interests of the children would be affected by the sale. For example, a court must consider if the opposing spouse has a legitimate claim for exclusive possession, or an equitable claim, that would be prejudiced by the early sale of the home. Further, the court must determine whether moving the children out of the home would cause harm to the children, which may already be exacerbated by the litigation and separation.

Mother Seeks Temporary Exclusive Possession of Matrimonial Home

Acknowledging that the respondent mother (the “mother”) had de facto exclusive possession of the matrimonial home, she sought an order for temporary exclusive possession of the home, pursuant to section 24(2) of the Family Law Act.

Section 24(3) of the Family Law Act requires the Court to consider the following before making an order for exclusive possession:

(3) In determining whether to make an order for exclusive possession, the court shall consider,

(a) the best interests of the children affected;

(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children.

In this case, the Court considered the following factors:

• The children were 13 and 17 years old and a shared parenting arrangement was in place;
• The existing support orders required a total of $10,289 in support to be paid each month to the mother;
• The lack of a “significant imbalance in the financial position between the parties”;
• The absence of any written agreement between the parties;
• Allegations of family violence by the mother, which were disputed;
• The ability of the Court to delay the sale of the property until after the children’s academic year has concluded; and
• The Voice of the Children report that indicated that both children wished to live primarily with their father.

Court Orders Matrimonial Property to be Sold

Upon review of the evidence, the Court found no reasonable basis for an order for temporary possession of the matrimonial home. Moreover, the Court concluded that the mother had “failed to discharge her onus of demonstrating that the matrimonial home should not be sold.”

Accordingly, the Court ordered that the matrimonial home be sold no sooner than July 1, 2024. In the temporary order issued by the Court, additional terms relating to the selection of the real estate agent, the sale price, and what would happen to the net proceeds of the sale, among other things, were outlined.

Contact Shariff & Associates for Comprehensive Assistance With Property Division and Selling the Matrimonial Home

Residential real estate transactions can be complex in any case, however, selling property following a separation or divorce can be fraught with additional layers of complexity. The skilled family and property lawyers at Shariff & Associates regularly assist clients with real estate matters arising out of family law matters. From reviewing an agreement of purchase and sale to negotiating a buyout of one spouse, our lawyers will help ensure the process moves smoothly. From our office in Stouffville, we assist clients throughout Markham and the Greater Toronto Area, including Ajax, Brooklyn, Aurora, Newmarket, Uxbridge, Whitby, Oshawa, Mount Albert, Ballantrae, and Zephyr. To discuss your real estate matter with one of our team members, contact us online or by phone at 905-591-4545.