When Courts Order the Sale of the Matrimonial Home

McInnis v McInnis 2017 ONSC 3921

BACKGROUND

The parties were married in 1979 and separated in 2014. There were no children of the marriage.

Both parties were employed during the marriage, but have since retired.

The parties have similar monthly incomes, consisting of RRIF and RRSP income.

The parties acknowledge and agree that the Applicant managed the couple’s finances throughout their relationship.

The matrimonial home – the hot ticket issue – is notably jointly owned and mortgage free.

Also important, is the fact that after the parties’ separation, the Respondent continued to reside in the matrimonial home.

The Applicant brought a motion for summary judgement for the sale of the matrimonial home – arguing that he needs his share of the equity from the matrimonial home to meet his expenses. The Respondent opposed this relief, and sought interim exclusive possession of the matrimonial home and its contents.

ANALYSIS

The Ontario Superior Court of Justice lays out the test on summary judgment motions, citing Rule 16 of the Family Law Rules and the Supreme Court of Canada’s decision in Hryniak v. Maudlin.

The court further notes that it has jurisdiction to order the sale of a jointly-owned matrimonial home as per section 2 of the Partition Act.

The Respondent advances several arguments as to why the home should not be sold, the main argument being that she has health issues. The Respondent deposes that the matrimonial home was built “using quality material which accommodate (her) current health issues.”

The court noted however that the Respondent filed little medical evidence – and tendered no expert evidence – that supported her arguments. The court further noted that while the Respondent was diagnosed with “Multiple Chemical Sensitivity” (MCS) in 2003, the parties’ matrimonial home was built around 1990. As such, the court found that there was no evidence that home was in fact built and designed to accommodate her medical condition.

The court further dismissed the Respondent’s other arguments – that the Applicant squandered the couple’s monies, that the Applicant had a cognitive decline that impacted his spending, and that the Applicant became emotionally and physically abusive.

Given the length of time that the Respondent has already resided in the matrimonial home post-separation, the fact that there are no children involved, and because the Respondent is unable to obtain an order under section 9(1)(d) of the Family Law Act requiring a transfer of the Applicant’s interest in the matrimonial home to satisfy an equalization payment, the court granted a final order that the matrimonial home be listed forthwith and sold.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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