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Should I Stay or Should I Sell? A Narrow Standard to Refuse Sale of the Family Home

5 minute read
Also authored by: Megan Peters

Navigating legal and financial issues that impact your life when your family dynamic changes can be challenging. Subscribe to FamilyMatters, our Lerners Family Law blog series, which provides insightful information and helps you determine your next steps. 

A couple's home is often one of their most valuable possessions, in both a monetary and sentimental sense. Beyond the monetary value of a family home, couples frequently attach much emotional value to their homes and the memories associated with them. Thus, separating spouses may find the decision to sell a home to be emotionally challenging. Accordingly, some spouses may wish to stay in their jointly-owned homes after separation. Such situations, in which separating spouses disagree as to whether their jointly owned homes should be sold, may become complex.


In Ontario, a joint owner of a home generally has a right to sale, pursuant to the Partition Act. Correspondingly, other owners have an obligation to submit to the sale of the home. If one owner resists, a joint owner may apply to be granted a court order for sale. Courts will commonly order the sale of jointly owned homes. In rare cases, a court may, however, exercise its discretion to limit an owner's right to sale under the Partition Act. "This narrow standard for the exercise of discretion" requires a resisting party to show that the party seeking the sale was guilty of malicious, vexatious, or oppressive conduct in relation to the sale, as held by the Ontario Court of Appeal in Latcham v Latcham.

Thus, when spouses jointly own their home, a resisting spouse must show that the spouse's application for a court order for sale was brought for ulterior, improper purposes (i.e., malicious) or to harassingly re-litigate an issue (i.e., vexatious), or if the resisting spouse will suffer serious hardship due to the sale (i.e., oppression), as per the Ontario Superior Court of Justice's review of past cases in Hutchison-Perry v Perry.


If a couple is married, their jointly owned home may be found to be a matrimonial home. Accordingly, unique considerations apply to determine the granting of a court order for the sale of such a home. A matrimonial home is property that was ordinarily occupied (i.e., in neither an occasional nor casual manner, as held by Ontario case law) by the married spouses as their family residence, at least at the time of the separation, per the Family Law Act. If a home is found to be a matrimonial home as contemplated by the Family Law Act, a spouse's right to its sale under the Partition Act may additionally be limited if the resisting spouse establishes that a sale would prejudice substantial rights with respect to the home under the Family Law Act, as held by the Ontario Court of Appeal in Silva v Silva.

The standard of showing such prejudice to a resisting spouse's rights is similarly narrow. For example, under the Family Law Act, a spouse has the right to apply to be granted a court order of exclusive possession of the contested matrimonial home; however, it is unlikely such a claim could singularly prevent an owner's attempt to force its sale (pursuant to the Partition Act). Indeed, in McNeil v McNeil, the wife resisting the sale of her matrimonial home wished to claim exclusive possession of the home. The Ontario Superior Court of Justice decided that she already had de facto possession of the home and that a right to exclusive possession could not be used to frustrate a spouse's right to its sale.


To summarize, the current legal landscape surrounding the rights of spouses to sell their homes is complex. When a separating couple has differing wishes concerning the sale of their home, one party may succeed in either forcing or delaying its sale depending on a number of factors, such as the ownership of the home and the couple's marital status. In cases involving jointly owned homes, courts generally have "narrow discretion" to refuse or force the sale. Courts will look to different factors to determine whether the sale of the homes of unmarried couples and married couples should be ordered. Given the intricacies of these issues, parties should consult with a lawyer for assistance in navigating this particular legal landscape.

At Lerners, we understand the delicate nature of domestic and family-related legal decisions and appreciate the emotional toll they can have on those involved. Our team in Southwestern Ontario and Toronto will work tirelessly to protect your interests and achieve the best possible outcome to get the closure you deserve. With a successful track record that includes some of Canada's most complex family law cases, we dedicate ourselves to achieving results and helping you move forward with your life. Contact us today to see how we can help.

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