Do you always have the final say when you sell your home? Don’t be so sure. The recent 2017 decision in McInnis v McInnis (2017) reminds us all that the court can order the sale of a matrimonial home during a divorce proceeding, even if one of the parties contests such an action. For all you married or separating homeowners, this is worth reading.
The McInnises were married in 1979 and separated after 35 years of marriage. They had no children, both parties were employed during their marriage, and both have retired. Their financial contributions were similar and uncontested. The big issue at stake, however, was the matrimonial home. It was mortgage-free and probably ghost-free, since it was built around 1990. The Respondent had continued to live in the house post-separation.
The Applicant brought a motion for summary judgment for the sale of the matrimonial home. He wanted to use his portion of the matrimonial home’s value to meet various expenses related to the divorce. This conflicted with what the Respondent wanted, and she attempted to gain exclusive possession. She did not want to move out of the house she had come to know and love over the years. She submitted that the house accommodated her health issues. Further, she submitted that the Applicant was acting financially irresponsible due to declining mental health.
Legally speaking, the Ontario Superior Court of Justice has the authority to order the sale of the home, according to section 2 of the Partition Act. This decision can occur outside of a trial, in summary judgment. Summary judgments allow the courts to deal with more cases without the painstaking effort involved in a trial. In Hryniak v. Maudlin, the Supreme Court of Canada confirmed the value of decisions made by summary judgment: “Summary judgment motions provide an opportunity to simplify pre-trial procedures and move the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.”
In McInnis, the court did not find the Respondent’s submissions persuasive. Her health issues began over a decade after the house was built, weakening the argument that it was built to accommodate and mitigate those health concerns. In fact, no evidence was given to support such a claim. Further, there was little supporting medical evidence filed for these health issues. The court also found that the Applicant was not being frivolous with his money.
Given the lack of evidence and persuasiveness on the Respondent’s behalf, the court refused to exercise its power granted in the Family Law Act to transfer the Applicant’s proprietary interest in the matrimonial home to the Respondent. Instead, against the wishes of the Respondent, they ordered its sale and sided with the wishes of the Applicant. The house was put up for sale and the Respondent needed to move.
Perhaps you sympathize with the Respondent in this case, believing the courts should favour individuals attempting to retain their homes. Alternatively, you may prefer the approach that errs on the side of selling the property. Whichever side you may find yourself, a decision has been made by the courts, confirmed in cases like Borg v Morris. In Borg, two co-owners of a property disagreed over whether to sell their property. Like McInnis, one party risked losing his home, and the other access to the money tied up in the property. It is clear, while the courts can exercise judicial discretion to go either way, the onus to not sell the house is ultimately upon the individual who wishes to retain ownership.
Law forces us to look to the future to avoid making similar mistakes. One takeaway from the McInnises plight is this: couples who wish to avoid an involuntary sale of their home in the future should prospectively decide, in writing, how and when the property may be sold. Trying to negotiate a consensus with your ex-partner on how to handle property can be challenging. In the words of Alan Lakein, “Failing to plan is planning to fail.”