Background:
Ms. Etches (the Applicant) and Mr. Mitchell (the Respondent) began cohabiting together in April of 2015, were married in 2018, and separated in June, 2023. In 2021, the parties adopted their child, “RJ,” who was eleven years old at the time of the proceeding. Following the parties’ separation, the Respondent remained in the jointly owned matrimonial home, while the Applicant moved into a home owned by her parents. The property, valued between $600,000 and $720,000, had approximately $220,000 to $245,000 in equity after accounting for a mortgage and secured line of credit.
Each party to the proceeding brought forward a competing motion. The Respondent sought exclusive possession of the matrimonial home under section 24 of the Family Law Act (FLA), along with a request to have title transferred solely to him upon assuming all secured debt and posting $40,000 in trust toward a future equalization payment. On the other hand, the Applicant moved under the Partition Act for an order to list and sell the matrimonial home, with net proceeds held in trust pending equalization.
The Law:
In considering the Respondent’s request for exclusive possession of the matrimonial home, the Court applied the legal framework under section 24(3) of the Family Law Act, which mandates a contextual analysis of the following statutory factors:
- Any violence committed by a spouse;
- The availability of other suitable and affordable accommodation;
- The financial positions of each spouse; and
- The best interests of the child, which must be the primary consideration.
Rule 24(4) of the FLA stipulates that in determining the best interests of a child, the Court shall consider:
- The possible disruptive effects on the child of a move to other accommodation; and
- The child's views and preferences, if they can reasonably be ascertained.
The Ontario Court of Appeal’s decision in Kirby v. Wood, 2025 ONCA 437 reaffirmed that a child-focused inquiry must drive the decision, and that exclusive possession cannot be awarded unless justified upon compelling evidence.
With respect to the Applicant’s motion for partition and sale, the Court applied the long-standing test set out in Silva v. Silva (1990), whereby the Ontario Court of Appeal confirmed that a joint tenant is presumptively entitled to an order for sale unless the opposing party demonstrates that the request is “malicious, vexatious, or oppressive,” or that sale would prejudice their rights under the Family Law Act. Furthermore, Goldman v. Kurdeyla and Latcham v. Latcham reinforce that a party resisting sale must clearly demonstrate that a substantive legal right, such as an unresolved claim for exclusive possession or equalization, would be impaired.
The Respondent’s request for a unilateral transfer of the Applicant’s interest in the property relied upon section 9(1)(d)(i) of the FLA, which permits a court to order property transfers to satisfy an equalization entitlement. However, the Court referenced Chaudry v. Chaudry, Shouldice v. Shouldice, and Martin v. Martin to clarify that such a transfer can only occur after the equalization entitlement has been quantified. The Court further emphasized that the Partition Act cannot be utilized to circumvent this precondition.
Analysis:
On the issue of exclusive possession, the Court found that the relevant statutory factors weighed against the Respondent. The evidence of family violence was unsubstantiated, and both parties had access to alternative accommodations. Financially, the Respondent’s proposal to assume debt and post $40,000 in trust was speculative and based upon the lowest valuation of the home; as he failed to provide adequate proof of financing. Most critically, the Court found that RJ’s best interests did not support the Respondent’s claim for exclusive possession of the matrimonial home. The Respondent argued that RJ, who has ADHD and an attachment disorder, would benefit from remaining in the home, but provided no current or professional evidence to support that claim. Notably, the Respondent rejected a proposed nesting arrangement that would have minimized disruption for RJ, undermining his argument that consistency in location was paramount. The Court also noted that RJ was thriving in school and was coping well with the parties’ current shared parenting schedule. As emphasized in Kirby, bare assertions without credible evidence do not satisfy the “best interests” threshold.
Turning to the Applicant’s request for partition and sale, the Court held that the Respondent failed to rebut the presumption in favour of sale under Silva. He did not establish that the Application was oppressive, malicious, or vexatious, nor did he demonstrate that his legal rights under the FLA would be compromised by a sale. Since equalization had not yet been quantified, the Court had no authority under section 9(1)(d)(i) to grant a transfer of title to the Respondent. As confirmed in Chaudry and Shouldice, the power to transfer is conditional on the equalization calculation being complete.
Conclusion:
The Court dismissed the Respondent’s motion for exclusive possession and for a pre-equalization transfer of title. The Applicant’s motion under the Partition Act was granted. The matrimonial home was to be listed for sale immediately at a price set by the listing agent. After discharging all secured debts, the net sale proceeds were to be held in trust pending equalization. The Applicant was also awarded partial indemnity costs of $2,000, payable from the proceeds of sale.
This decision highlights that courts will not grant exclusive possession absent reliable, child-focused evidence showing that it is necessary. Additionally, it reinforces that the default rule in partition and sale cases will prevail unless clearly rebutted. Finally, the case confirms that the Court’s power to transfer property under the FLA cannot be exercised prematurely, and is strictly tied to the completion of the equalization process.