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Afolabi v Fala, 2014 ONSC 1713

This case addresses the issue of a summary judgment motion for the sale of the matrimonial home.


The parties began cohabiting with one another in July 2008 and were married on November 20, 2008.  The parties separated on March 1, 2012.  Mr. Afolabi argues that the equalization claimed by “Ms. Fala is not a genuine issue requiring a trial because it will be Ms. Fala who must pay him an equalization payment in any event” (paragraph 9).


The Court commenced its analysis by considering the basis for Mr. Afolabi’s claim for the partition and sale of the matrimonial home.  Sections 2 and 3(1) of the Partition Act provide the following:

2. All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.

3(1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.

The Court found that under the Partition Act, “a joint tenant has a prima facie right to an order for the partition or sale of lands held with another joint tenant.  The other joint tenant has a corresponding obligation to permit that partition or sale” (paragraph 27).  The Court further stated at paragraph 29, “The onus to show what circumstances are present in a proceeding that might require the court to exercise its discretion to refuse an application for a partition or sale order rests with the party opposing the application”.

The Court of Appeal in Latcham v Latcham (2002), 27 RFL (5th) 358 (ONCA), held that the “proper standard for the exercise of judicial discretion to refuse partition under section 2 of the Partition Act required evidence of malicious, vexatious or oppressive conduct” (paragraph 33).  Further, in Bailey v Rhoden, 2008 CarswellOnt 4988 (Ont. SCJ), it was held “that the court could refuse partition and sale if it were shown that the sale would cause hardship to the joint tenant resisting the application that the hardship amounted to oppression” (paragraph 34).  When applying such principles to the case before the court, the Court found that there was no evidence before it to satisfy the court that it should “not exercise [its] discretion to refuse an order for partition or sale of the jointly held property” (paragraph 35).

The Court then turned its mind to the issue of whether it could make a summary judgment on the above-detailed issue.  Rule 16(6) of the Family Law Rules provides:

If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

In Hryniak v Mauldin, 2014 SCC 7, the Supreme Court of Canada called for a “cultural shift in the justice delivery system to ensure access to justice for all” (paragraph 37).  The Court held at paragraph 45:

The onus of satisfying the court here is no genuine issue rests on the moving party.  However, once the moving party has established a prima facie case on the affidavits or other evidence filed, the evidentiary burden shifts to the responding party to set out specific facts that there is a genuine issue that requires a trial.

The Court determined that as Mr. Afolabi has a “fundamental right as joint tenant to compel the sale of the property absent a sufficient reason for the court to exercise its discretion to refuse that claim”, the burden now shifts to Ms. Fala to show that there is a genuine issue that requires a trial (paragraph 50).  The Court found that Ms. Fala had not dispensed with such a burden, and, as such, ordered the sale of the matrimonial home on a summary judgment basis.