Can the Best Interest of Children outweigh the Partition and Sale of a Matrimonial Home?
The parties married in 2006 and separated in 2020. They continued to reside in the matrimonial home for another 10 months post separation, after which the father moved into a rental apartment. The mother earns approximately $350,000 per year, and the father $1.5 million. The father pays the mother on a monthly basis, interim child support in the amount of $18,500 per month, 72% of the children’s section 7 expenses, and $14,000 in spousal support. The children have resided in the home for the past 13 years. A realtor evaluated the home between $2.25 million and $2.35 million. There is a line of credit registered against the home in the amount of $692,000. The mother is of the view that the value of the home is much lower, after the line of credit and 5% commission deduction, the parties net equity in the home is around $715,000 each. The father brought a motion for partition and sale of the home, and the mother is opposed. The father argues that the market is hot right now, but is willing to delay the sale until summer school break so the children are inconvenienced as little as possible. The parties previously agreed to allow the children to remain in the home, and the father was open to a buy-out by the mother but is now opposed.
The jurisdiction to order partition and sale of a jointly owned property is found in s. 2 and 3 of the Partition Act, is as follows:
Who may be compelled to make partition or sale
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.
Who may bring action or make application for partition
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.
Justice Kurz recognizes that although partition and sale is available to a joint owner, the usual test and case law should not be the only factor when dealing with a matrimonial home:
In a nutshell, while partition and sale is presumptively available at the behest of a joint owner, that principle is subject to greater discretion when the court is dealing with a matrimonial home and when the request is made at an interim rather than trial stage of the proceedings. In an interim motion, the court is called upon to engage in a holistic review of the merits of the sale, while considering the interests of each party and the children. Further the court must balance the prejudice to the claims of each party regarding the home against prejudice to the other and the advantages of sale.
A key point in the interim family law context is how the best interests of the children before the court, rather than an abstract notion of children in general, would be affected by sale before trial. The best interests of the children before the court may, in themselves, may be sufficient to overturn the presumption regarding partition and sale, unless other facts mandate that sale.
In Delongte v. Delongte 2019 ONSC and Kaing v. Shaw 2017 ONSC it was found that the court must consider the impact of a proposed sale on children or a vulnerable spouse- including the emotional impact and the fundamental need to ensure they have appropriate housing.
The father’s reasons for selling the home are based on legal and financial gain, however he argues that it would be in the best interest of the children to sell the home during the summer to allow them to acclimate. However, this is contradictory to his previous statement that it would be in the best interest of the children to stay in the home when the parties jointly expressed to the children, they would do everything they can to stay in the home.
Justice Kurz stated that if and when the house was to go on the market, the mother would be able to purchase the home, which would result in the parties’ promise to their children being kept. Justice Kurz also found that the father will not suffer a delay to his half equity in the home, and that he is not prejudiced by the delay of sale of the home to the upcoming trial sittings in the fall.
The motion is dismissed but may be renewed if the matter is not reached by the fall trial sittings.