BACKGROUND
The Applicant Husband and the Respondent Wife were married in 2009 and separated in 2019 – when the Applicant Husband was removed from the home and charged with 8 counts related to domestic violence. The Respondent Wife continued to occupy the parties’ jointly owned home thereafter.
The Respondent Wife was also granted an interim Order for Exclusive Possession of the home. Further, there was outstanding spousal support arrears owing from the Applicant Husband to the Respondent Wife. A trial of the matter was scheduled for the May 2026 trial sittings. However, the Applicant Husband brought a Motion for the immediate sale of the matrimonial home. The Respondent Wife opposed the sale and requested an Order to have the matrimonial home vested in her sole name.
ISSUES
- Should the matrimonial home be ordered to be listed for immediate sale?
- Should the Respondent Wife’s pleadings be amended to include a claim for the matrimonial home to be vested in her sole name?
ANALYSIS
The Applicant Husband argued that he was prejudiced in being denied access to his equity in the jointly-held matrimonial home.
While there was some truth in this given it had been 6 years since litigation began, the Court stated that the Applicant Husband was equally as responsible for the delay in the matter as the Respondent Wife. Moreover, there were several live issues that were relevant to the matrimonial home that had yet to be resolved.
Among these issues included the fact that there was a $500,000 mortgage on the home held by the Applicant Husband’s mother- the validity of same remained a triable issue. Further, there were outstanding arrears in spousal support due from the Applicant Husband to the Respondent Wife, in the amount of approximately $53,000. The Respondent Wife did not want these arrears to be paid out of the proceeds of sale, but sought an Order that the matrimonial home to be vested in her sole name.
Reviewing all the issues, the Court determined it would not be appropriate to order the sale of the home. This is despite the fact that a joint tenant of a property has a prima facie right to an Order for the partition and sale of a property they hold with another joint tenant.
The Court would not permit a resolution of the issues related to the matrimonial home to occur at a late-stage motion rather than proceeding to trial four months away. The Court specifically commented that they may have made a different decision had either of the parties pursued relief regarding the house more diligently in the 6 previous years. The issue could be not characterized as urgent when the parties had waited almost until trial to address it. Moreover, ordering the sale of the home could prejudice some of the Respondent Wife’s unresolved claims- including her recovery of spousal support arrears.
The Respondent Wife’s Claim for a Vesting Order
Despite the fact that the Respondent Wife had not made a claim for a Vesting Order in her pleadings, the Court determined that her Application was deemed to include the claim. The Respondent Wife had been self-represented at the time of filing her pleadings. As such, the Court accepted that the Respondent Wife not including a claim for a Vesting order in her pleadings, was a simple oversight.
CONCLUSION
The Applicant Husband’s Motion for the sale of the matrimonial home was dismissed. The Respondent Wife was also permitted to serve an Amended Application containing her claim for a Vesting Order within 10 days of the Motion Endorsement. However, the Court ruled that she was not required to do so given the short timeframe, and that her Application would be deemed to include the claim regardless.
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