Hardship in the Family Law Context: Test for Selling Home of Common-law Spouses

Kaing v. Shaw, 2017 ONSC 3050

This case sets a precedent that oppression in the property law context can be established if the children occupying a jointly-owned, non-marital home would face hardship.

Background

The parties began cohabiting in 2002 and have three children together under the age of 8. In 2013, they moved into a home that they jointly own in Thunder Bay, Ontario. They resided in this home until they separated in September of 2015, though they never married. Upon separation, the father moved out and began renting an apartment for $650 a month. The wife continued to occupy the home with the three children, taking it upon herself to pay the mortgage, taxes and utility bills for the home. She has not worked because she is in a full-time education program, so her full-time income is derived from child support payments and the child tax benefit. She is set to graduate in April, 2018. The father earns $30,000 per year and pays $493 per month in child support. The husband brought a motion for summary judgement for the sale of the house.

Analysis

Because the parties never married, this house is not a matrimonial home subject to Part II of the Family Law Act. However, as joint owners and tenants, the parties are subject to section two of the Partition Act. Under this legislation, a joint owner has prima facie right to partition and sale of the property. However, the court does have some limited discretion under which to refuse, namely is there is oppressive or malicious conduct relating to the sale of the home. In a case called Greenbanktree Power Corp. v. Coinamatic Canada Inc., the Court of Appeal stated that oppression includes hardship.

The judge stated that forcing the children to move from the family home would result in them being uprooted from their family, friends, school and daycare. Furthermore, upon the sale of the home the judge was skeptical that the mother would be able to find suitable, alternative accommodations with the $20,000 she would receive from the sale. In fact, it was the father’s own evidence regarding rental prices for his one-person space that persuaded the judge that the mother would face great hardship in finding a new home for her and three children. The best interests of the children would not be served by ordering the sale of the house. Justice Shaw ultimately dismissed the father’s motion for partition and sale because the mother and children would experience hardship, which satisfied the legal test for oppression.

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