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Can a Matrimonial Property be Sold Before Trial and What are the Circumstances of Such Sale?:



The short answer is yes!

This was affirmed recently in a case called Bailey-Lewis v. Lewis, 2020 ONSC 7525 by Faieta, J.


A person with an interest in land has a prima facie right to an order for the partition and sale of a matrimonial home under ss. 2 and 3 of the Partition Act. A court is required to compel the partition and sale of a matrimonial home unless the opposing party has shown that there is malicious, vexatious, or oppressive conduct on the part of the moving party in relation to the sale itself: Marchese v. Marchese, 2019 ONCA 116.


In this case, the Respondent submits that the equalization of property between the parties has not been completed and thus he may be prejudiced by the sale of the matrimonial home. Given that:

(1) the Applicant, unlike the Respondent, appears to have made the required financial disclosure; (2) there will be a relatively sizeable amount of equity in the matrimonial home that will be held in trust following the sale, I find that the risk of prejudice to the Respondent is more imagined than real.


[19] The Respondent further submits that the court must consider the impact of the proposed sale on the child, Stephen: See Fernandes v. Darrigo, 2019 ONSC 1039 (Div.Ct.) paras. 19-21. However, there is no evidence that Stephen is a vulnerable child or that the sale of the matrimonial home would have significant disruptive effects on him.


The Judge concluded that: “while an order for the sale of a matrimonial home prior to trial should not be made as a matter of course, there is no reason not to do so in this case. It appears that the Respondent does not want the property sold on the open market so that he may buy it directly from the Applicant at what appears to be at a discount in order to increase the chances of obtaining financing for its purchase on his modest income. That is not a sufficient reason to oppose this motion particularly as the court-imposed deadline for providing proof of qualification for financing passed more than eight months ago. Given that the Respondent seeks to prevent or delay the sale of the matrimonial home on the open market so that he may continue to try to cobble together financing in order to purchase it, I agree with the Applicant that she should have control over the sale process on certain terms. If the Respondent is able to arrange such financing, then he will be at liberty, like anyone else, to make an offer to purchase the matrimonial home on the open market.”


Analysis:

Three points come out from this case. First, unless you have a really good reason not to sell, matrimonial home is required to be sold; this is a problem especially if you don’t make adequate disclosure as in this case – the Judge was not so sympathetic to the Respondent because he did not make full and timely disclosure; second, the excuse of a child being affected can only be stretched so far and no farther – children can adapt and Courts don’t give too much traction to this reason; third, it is not good reason for the opposing party to say that the property should not be sold – if the opposing party wants, he / she can bid for it on the open market where there could be a bidding war.


This is a very complex issue. We are happy to help you out! At Shankar Law, we are happy to assist and guide you through whatever challenges you have in your spousal life. We work all over Ontario, but primarily in three counties: Huron, Bruce, and Grey and span several cities (Southampton, Kincardine, Goderich, Wiarton, Hanover, Dundalk, Walkerton, Meaford, Markdale, Chatsworth), through our two locations in Port Elgin and in Owen Sound.

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