Recent Case: Sale of the matrimonial home

Scanga v. Scanga 2023 ONSC 3592

This decision stems from an appeal in a family law case involving the sale of a matrimonial home. One party sought exclusive possession while the other sought to have the house sold and the proceeds divided.

By way of background, the parties married in 1996 and separated in 2019 when the woman’s ex-partner left the home. They had purchased the home together in 2002. Following separation, the woman and her two adult children lived in the home while the children pursued post-secondary education on a full-time basis. Her ex-partner continued to make payments towards expenses of the home, including the mortgage, insurance, property taxes and home line of equity.

The ex-partner proposed selling the home in January 2020. The woman did not want the home to be sold and proposed instead that she buy him out of his 50% interest. They couldn’t reach an out-of-court agreement on this issue, so the ex-partner eventually brought a motion seeking an order for its sale under the Partition Act. This legislation allows an owner/joint-owner of a property to apply to the court for an order that the property be sold. The woman asked for an order for exclusive possession of the home. She took the position that she was entitled to claim a “permanent” exclusive possession order.

Based on the evidence provided, the motion judge ordered that the home be sold and directed that the proceeds of sale be held in trust by a mutually agreed upon real estate lawyer pending agreement or further order of the court. This means no one would have access to the proceeds of sale until they were able to agree on how the funds should be split or unless a court made an order about how the funds should be split.

The woman appealed this decision. Since the order involved the sale of a home, it is a final order. Any appeal of an order under the Partition Act is to be heard by the Divisional Court, which is a branch of the Superior Court of Justice.  

On appeal, the Divisional Court found that the motions judge’s decision to order the sale of the home was reasonable based on the evidence. The motion judge had applied the right legal test which involves the balancing of the right of the woman’s ex-partner as joint owner to sell the home versus the prejudice to the woman’s rights if the property were to be sold. Overall, the woman had not provided sufficient evidence at the motion to establish what prejudice would result to her if the home were to be sold. The children were now adults and her rights to make other financial claims in the case were not impacted by the order. The woman had not provided sufficient evidence to make out her claim for exclusive possession under the Family Law Act and that her claim for “permanent” exclusive possession was simply not tenable. The court made it clear that if the parties couldn’t agree how to divide the net proceeds, the woman could go to court and ask for an order for support and/or that some funds be released so that she could address her living arrangements.   

For more information about exclusive possession orders, please see Steps to Justice: