Selling the Family Home

Date: 03 Jan, 2018| Author: Fred Streiman


The husband has moved out leaving the wife and children behind in the matrimonial home. In this era of hyper real estate inflation, the matrimonial home may be the largest asset owned within the family. After the guilt has subsided, what does one do when the husband announces that he wishes to have the family home sold so he can receive his share of its value while the wife already beset by the storms of a separation does not want to inflict further change upon she and the children.

The legal answer curiously does not lie in the normal place. Between formally married couples (not common law) their property rights are governed by the Family Law Act.Common law couples are shut out from the very specific formulas contained within the Family Law Act.We direct the readers of this website to the various articles on Joint Ventures and Common Law Property Rights as evidence of the uncertainty facing common law parties upon their separation.

However for all the bells and whistles and extensive tools that are set out on the Family Law Act, it has no provision for a quick sale of the matrimonial home.

However, in the circumstances where the matrimonial home is owned by both parties – and in this case it matters not whether they are or not married – relief can be found in a very old Law first passed in 1870,The Partition Act. To give one a sense of how old it is, it is reflected in its ancient English. I quote paragraph 2 of The Partition Act, which is the engine of the entire law.

“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, maybe compelled to make or sever partition or sale of the lands or any part thereof, whether the estate is legal and equitable or equitable only”.

The 2016 Ontario Divisional Court decision in Kaphalakos, stated that a joint tenant had a prima facie right toan order for the partition and sale of lands held with another joint tenant. The court is required to force the sale of the property unless the opposing party can demonstrate that such an order should not be made and to do so they must show that the person asking for the sale of the home must show malicious vexatious or oppressive conduct to avoid the order. Further, that mean conduct must relate to the sale of the home and not the general conduct of the person asking for it. In simple terms, one could state that the only way that one can successfully defend a claim by the husband that the home be sold to have the court find that his motives are driven by malice or an ill motive rather than simply wanting to get ones hands on their share of the equity.

An example of such malicious behavior might be there are very significant assets aside from the matrimonial home already owned by the husband and that under no circumstances would he be at the receiving end of a payment, but rather would owe money to the wife.

Complicated stuff however relatively garden variety in the family law vegetable patch.