Sale of the Matrimonial Home Palmer v. Lumsden 2018 ONSC 7499
The parties lived together for approximately 10 years, separating September 9, 2013. Together they share one child, who is 14 years old. The parties jointly purchased their matrimonial home in 2007. The husband says that he contributed to the down payment, home expenses and put his own labour into the property while they resided together. The wife denied these claims, submitting that he has paid little towards the home and has not paid anything since 2013 when the parties separated.
The husband relied on ss. 2 and 3(1) of the Partition Act, R.S.O. 1990, c. P.4. They read, in part:
- ss.2: “All joint tenants ... [of] any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof...”
- 3(1): “Any person interested in land in Ontario ... may bring an action or make an application ... 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.”
According to case law under the Act, a joint tenant has a prima facie right to an order for the partition or sale for lands held with another joint tenant. The other joint tenant has a corresponding obligation to permit that partition or sale.
The court is required to compel such partition or sale if no sufficient reason can be shown why such an order should not be made, but the court may exercise their discretion based on the facts of each case. 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 confirmed 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. The court held that this narrow standard for the exercise of discretion flowed from a joint owners' prima facie right to partition.
In Bailey v. Rhoden, it was held that the court could refuse partition and sale if it were shown that the sale would cause such hardship to the joint tenant resisting the application such that the hardship amounted to oppression.
Therefore, in order to successfully oppose the motion, the wife needed to show evidence of malicious, vexatious or oppressive conduct. The wife argued that she did not want to move her 14 year old son out of the home, and she was interested in buying out her husband’s interest.
The judge had no evidence that the husband had contributed to the matrimonial home in a substantial way, and based on this, the proceeds of the sale should not be divided equally. Therefore, it is possible that the wife could buy out the husband’s interest if that interest is less than half of the home’s value.
The judge stated that it would be oppressive for the house to be sold now, only to find that in the end the sale was unnecessary. The judge ruled that the motion for partition and sale be dismissed, and that a conference should be held on the value of the home, and each party’s contribution.
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