In S.B. v. W.B., 2020 ONSC 5023, Justice MacPherson went into the issue of Partition orders and when these may be made.
Sections 2 and 3 of the Partition Act, provides as follows:
Who may be compelled to make partition or sale
2 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, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.
Who may bring action or make application for partition
3 (1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.
When proceedings may be commenced
(2) Where the land is held in joint tenancy or tenancy in common or coparcenary by reason of a devise or an intestacy, no proceeding shall be taken until one year after the decease of the testator or person dying intestate in whom the land was vested.
With respect to the case, the Judge commented:
[29] The parties hold the property as joint tenants. Accordingly, the Applicant has standing to bring a motion for Partition and Sale.
[30] In Goldman v. Kudeyla, 2011 ONSC 2718, 5 R.F.L. (7th) 149, McGee J. provides a summary of the law with respect to a judicial order for the sale of a property prior to trial. She states at para. 17:
A property owner, whether the holder of an exclusive interest or a joint interest has a prima facie right to sale. When the property consists of an interest in a matrimonial home, that prima facie right is subject to any competing interests under the Family Law Act that would otherwise be defeated.
[31] It is noteworthy that we are not in the pre-trial stage of the proceedings. We have a Final Order on consent.
[32] The Applicant, as joint owner, has a prima facie right to request a sale of the matrimonial home in order to obtain the $300,000 as set out in the Final Order.
Analysis:
Generally, if there is a problem or dispute regarding a matrimonial home, and if parties are unable to agree to its disposition, the Court may well order its sale, except if there are Family Law Act repercussions to it. This case is an example where the parties agreed to a sale with a final price. When the husband reneged on the agreement, the Court went into the law and ordered its sale.
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