Matrimonial Home – To sell or not to sell?

The fate of the matrimonial home is often one of the largest bones of contention in matrimonial cases. The case of Trush v. Trush, decided by the Ontario Superior Court of Justice earlier this year, is no exception. In this case, the parties were married for quite some time and, at the breakdown of their marriage, the parties could not decide what to do with the matrimonial home. The husband was living in the home and, consequently, moved for exclusive possession thereof. The Wife, on the other hand, was of the opinion that the home should be partitioned and sold pursuant to the Partition Act or, in the alternative, she sought occupation rent from the Husband.

In order to determine what to do with the matrimonial home, the first source that Judges look to is section 24 of the Family Law Act. Section 24(3) sets out the criteria for an Order for exclusive possession and reads as follows;

Order for exclusive possession: criteria 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; (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. R.S.O. 1990, c. F.3, s. 24 (3). In the case at bar, the parties had one child and, although he was 26 years old, he still lived with his father due to health problems at birth and an ensuing medical malpractice award. The child did not pay rent to his father. As such, the Court did not consider the best interests of the child in this case.

In the absence of this criterion, the Court was left to weigh the financial positions of the parties. There was an income disparity of over $50,000.00 in favour of the wife. Due to her income, she was able to purchase a new home and, as such, could not compel the Court that she required her share of the proceeds of the home in order to secure a new residence. The husband, by contrast, could not afford to purchase a new home. He would have been wiling to purchase the wife’s interest in the matrimonial home, but would be financially unable to do so unless and until the matters of equalization and spousal support were settled.

After examining the key cases in this regard, Justice Pierce found that the husband’s right to claim exclusive possession of the matrimonial home at trial would be prejudiced by an immediate order for sale of the home. As such, the Court granted the husband interim exclusive possession and denied the wife’s claim for partition and sale.

This decision begs the question of whether this is the most equitable and logical way in which to determine whether a home should be sold. It seems unfair that a claim for partition and sale should be denied regardless of whether or not a spouse’s claim for exclusive possession is meritorious. This area of law is especially difficult in that the Family Law Act is of little assistance in cases where there are no children and domestic violence is not an issue.

The Court did not deal with the question of occupation rent for the Wife while the Husband lives in the matrimonial home. This issue is typically dealt with at trial and is determined based on several criteria as set out in Higgins v. Higgins. Some examples of factors that the Court considers in determining whether a person is entitled to occupation rent include the conduct of the spouses, delay in making the claim and the extent to which the non-occupying spouse has been prevented from having access to her equity in the home.

As demonstrated above, disputes regarding the matrimonial home really require the Courts to engage in a balancing of the interests of the spouses in order to come to an equitable decision.

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