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BACKGROUND

The parties were married for over 28 years and separated on March 29, 2022. The Applicant moved out of the matrimonial home post-separation, and the Respondent continued to reside there with the parties’ children, ages 12 and 16.

Between March 29, 2022 and June 2023, the Applicant covered the costs related to the matrimonial home, including the mortgage and a portion of the property taxes. The Applicant ceased covering these expenses in June 2023 and commenced paying monthly child support in the amount of $6,493 and section 7 expenses.

The Royal Bank of Canada (“RBC”) holds the mortgage for the property. The mortgage and property taxes have been in arrears since July 2023, so RBC commenced an action against both parties. Per the Statement of Claim, the parties owed: (1) $1,843,443.62 (principal on the mortgage) plus interest; (2) $51,143.43 plus interest for a joint line of credit; (3) $41,079.87 plus interest for a second joint line of credit; (4) $9,865.11 plus interest for a credit card held solely by the Respondent; and (5) $10,269.97 plus interest for a credit card held solely by the Applicant.

The Applicant brought a motion for the sale of the jointly owned matrimonial home. The Respondent is opposed to the sale of the matrimonial home.

ISSUES

  1. Should the Court order the sale of the matrimonial home?

ANALYSIS

Section 2 of the Partition Act allows courts to order the sale of jointly owned property, including a matrimonial home. However, courts have noted that in family law cases, a partition application should generally not be granted where it can be shown that a legitimate family law claim would be unfairly prejudiced. That being said, where it is evident that monthly carrying costs are currently unsustainable, it is inappropriate to indefinitely perpetuate financial hardship for the entire family.

The Respondent argued that selling the matrimonial home would prejudice her claims under the Family Law Act regarding child support, spousal support, and equalization. Essentially, the Respondent believed that once these financial issues were resolved, she would be able to buy out the Applicant and maintain the residence. The Court stated that the onus is on the party resisting the sale to demonstrate that a legitimate claim would be prejudiced. In doing so, the party must also demonstrate that maintaining the home is financially feasible. The Respondent did not meet this onus, as explained below.

The Respondent maintained that she made every effort to bring the mortgage into good standing after the Applicant stopped payments by authorizing a payment of $20,000 towards the mortgage arrears and offering monthly payments. However, there was no evidence that RBC would allow the arrears to be paid and the mortgage to remain in place, since the bank called payment on the entire mortgage. Further, there was no evidence to suggest that the Respondent would even qualify for a new mortgage, which would be required for the matrimonial home. There was likewise no evidence to show that keeping the matrimonial home was financially feasible, as shown below.

The estimated value of the matrimonial home ranged from $4.1 to $4.6 million. The outstanding mortgage was $1.8 million plus legal fees and administrative costs. If the house were to sell for $4 million (lower than priced), and the entirety of the mortgage was paid off (approximately $2 million in total), that would leave approximately $2 million to be divided equally between the parties. Then, even if the Applicant owed the Respondent approximately $1 million in equalization (leaving the Respondent with a total of $2 million in equity), the Respondent would still need to qualify for a $2 million mortgage just to buy the $4 million home. However, as stated above, there is no evidence that the Respondent would qualify for a mortgage. Thus, the Court determined that maintaining the matrimonial home was beyond the financial means of the Respondent.

The Court went on to note that where the financial circumstances are such that selling the home is inevitable, there is little justification for delaying the sale. The Court already found that the Respondent was not financially able to maintain the matrimonial home. So, the question remained whether the Court should order the sale of the home at this time. Since RBC commenced proceedings to take possession of the home, the Court determined that it was only a matter of time before RBC sought a summary judgment. Thus, the parties could not delay the sale due to the urgency of the situation.

The Respondent also argued that it is not in the children’s best interests to sell the matrimonial home. However, the Court stated that the mere existence of children in a household is not in itself a sufficient basis to oppose the sale. Rather, the party opposing the sale must establish a likely negative impact more serious than the inevitable adjustments and disruptions that all families face during a separation. The Respondent did not meet this onus.

CONCLUSION

The Court ordered the sale of the matrimonial home as soon as possible, as there was no basis to delay it any further.