Partition and Sale of the Matrimonial Home in Ontario

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

The court in Afolabi v. Fala discussed cases that convey the standard by which a court may refuse partition and sale of the matrimonial home, despite the prima facie right of each spouse.

In Latcham v. Latcham, Justice Emery set out an extremely narrow standard by which a court will exercise its discretion to refuse partition and sale of the matrimonial home. Justice Emery explained that the judicial trend has been to confine the discretion of the court to refuse an order for 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 owner’s prima facie right to partition.

Furthermore, in Bailey v. Rhoden, the court ruled that the essential and ultimate factor to take into account when ruling on such a motion is whether granting the motion would cause hardship amounting to oppression.

To learn more about the matrimonial home, as well as the services provided by Krol & Krol, call (289) 907-1081 today.