Matrimonial Home: Partition and Sale

The Court in Afolabi v. Fala dealt with a question that many courts in Ontario currently deal with on a daily basis; when should a judge refuse to grant a motion for partition and sale of the matrimonial home?

The Court in Afolabi and Fala brought down two specific cases that convey the standard by which a court may refuse the partition and sale of the matrimonial home; a prima facie right of each spouse.

In Latcham v. Latcham, Justice Emery set an extremely narrow standard by which a court will exercise its discretion to refuse the partition and sale of the matrimonial home. Justice Emery explained:

The judicial trend in recent times has been to confine the discretion of the court to refuse an order for the partition or sale of jointly held property to a narrow standard. The Court of Appeal in Latcham v. Latcham (2002), 27 R.F.L. (5th) 358 (Ont. C.A.) confirmed that the proper standard for the exercise of judicial discretion to refuse partition under section 2 of the Partition Act required evidence of malicious, vexatious, or oppressive conduct. The court held that this narrow standard for the exercise of discretion flowed from a joint owners' prima facie right to partition.

Furthermore, in the case of Bailey v. Rhoden, the Court ruled that the essential and ultimate factor that courts should take into account when ruling on such a motion is whether granting the motion would cause such hardship as would amount to oppression.

To learn more about the matrimonial home as well as the services provided by Krol & Krol, call 905.707.3370 today.