The interim sale of the matrimonial home is frequently a contentious issue in family law cases. Should the home be sold immediately, or should one spouse be permitted to remain in the home until all financial matters are settled? In Sparkman v. Sparkman, 2023 ONSC 41, the judge thoroughly analyzed this question and reflected on the thresholds to be satisfied. In the case, the wife sought an order for partition and sale of the matrimonial home, while the husband opposed the motion.
The issues before the Court were as follows:
The parties acknowledge that the court in a family law proceeding may grant an order for partition and sale under s. 2 of the Partition Act R.S.O. 1990 c. P. 4 when one owner seeks such an order unless:
a. an interim sale will prejudice a substantial right of one of the parties under the Family Law Act (Silva v. Silva 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436, [1990] O.J. No. 2183 para. 23) or
b. the responding party demonstrates that the applicant’s conduct in seeking the order is malicious, vexatious or oppressive (Latcham v. Latcham 2002 CanLII 44960 (ON CA), [2002] O.J. No 2126 para. 2) (Sparkman v. Sparkman, 2023 ONSC 41, para. 11)(emphasis added)
Issue One: Will an Interim Sale Prejudice a Substantive Right of the Husband Under the Family Law Act?
The Court considered several issues regarding whether or not the order requested would prejudice substantive right’s of the husband under the Family Law Act.
1. Net Family Property Calculations: The husband claimed he expected to be owed an equalization payment at the conclusion of the family law litigation (conversely, the wife claimed she was entitled to an equalization payment) and that the outstanding equalization issues were sufficient to bar the partition and sale of the matrimonial home. The Court found, in the case at hand, the argument to be insufficient.
The husband’s net family property calculation is not complete. Therefore, the equalization process is not imminent. Further, where the opposition to the sale is based upon a desire to have funds available for payment of an eventual equalization claim, the courts have generally allowed the sale to proceed: Kamboh v Majeed, 2021 ONSC 892, para. 33 (Sparkman v. Sparkman, 2023 ONSC 41, para. 5)
2. Proceeds into Court: The wife’s proposal to pay the proceeds into Court was also a significant factor. This would safeguard any potential financial interests the husband might have, effectively neutralizing his argument that his substantive rights would be prejudiced in this regard.
Given that the relief sought on this motion is for the proceeds of sale to be paid into court, the husband’s financial interests, should he be found to have them, will continue to be protected in accordance with the reasoning of Myers, J. (Sparkman v. Sparkman, 2023 ONSC 41, para. 16)
3. Vesting Order: The husband further argued prejudice to his substantive right to seek a vesting order in the home if he is owed an equalization claim. The Court dismissed the husband’s argument about a potential vesting order as too speculative. The husband had not even claimed a vesting order in his pleadings, making it too remote a possibility to be considered a substantive right.
The Court has a broad discretion to make vesting orders; the onus is on the person seeking a vesting order to establish that it is appropriate (Lynch v. Segal 2006 CanLII 42240 (ON CA), 277 DLR (4th) 36 (ON CA), at para. 32). (Sparkman v. Sparkman, 2023 ONSC 41, para. 13)
At this stage, the respondent has not claimed a vesting order in his pleadings. Nor has he pleaded a trust claim in respect of the matrimonial home. A vesting order in this case is too remote a possibility to be considered a substantive right of the kind that would inhibit the sale of a jointly owned matrimonial home as contemplated in Silva. (Sparkman v. Sparkman, 2023 ONSC 41, para. 14)
4. Pending Litigation: The Court was also asked to considered other pending litigation and the impact of granting an order, which might arguably otherwise interfere with such cases. The Court determined this was not the case.
In this case, given the fact that there are three proceedings outstanding, and that none of them is moving forward with any alacrity, I find that in the context of the whole proceedings between the parties partition and sale of the matrimonial home is appropriate. As noted above, trial is far from imminent. In the words of Finlayson JA in Silva (para. 24) “I can think of no reason why the husband should hold the house hostage until his claim has been adjudicated. …I do not think that his concern about collecting a subsequent award, in the circumstances of the case, amounts to prejudice within the meaning of the case law.” (Sparkman v. Sparkman, 2023 ONSC 41, para. 18)
Issue 2: Oppression, Malice, or Vexation
In evidence of, or in support of, his position that the conduct of the wife was vexatious and malicious, the husband noted: (a) the current attempt to remove him from the matrimonial home when, for several years, this step was not undertaken; (b) there would be no benefit to the wife since the proceeds of sale of the matrimonial home would remain in trust until further court order and (c) there would be no pecuniary benefit to either party if she succeeds.
In addressing these issues, the Court noted:
1. Nature of Vexatious Conduct: The nature of the vexatious conduct must be particular to the case at hand and not general in nature.
The vexatious conduct must relate to the issue of the sale of the matrimonial home; it is not whether there is vexatious conduct in general that is to be considered: Marchese v. Marchese, 2017 ONSC 6815, at para. 18, aff’d 2019 ONCA 116. (Sparkman v. Sparkman, 2023 ONSC 41, para. 21)
2. Timing of the Request: The wife had been asking for the sale since 2019, making it a longstanding issue rather than a sudden, vexatious action. Accordingly, her course of conduct was not vexatious in nature.
The wife’s uncontradicted evidence is that she has been asking for the matrimonial home to be sold since 2019. It is not a new request. (Sparkman v. Sparkman, 2023 ONSC 41, para. 22)
3. Funds in Trust: The husband argued that because the funds would be held in trust, the wife had no pecuniary gain, implying the motion was vexatious. The Court disagreed with the husband’s arguments, finding that although there may not be immediate pecuniary benefits, there were benefits and accordingly, it may be concluded that the wife’s conduct was not vexatious. The Court highlights certain of the benefits of the sale of property in its dictum below including (a) pecuniary gain, although not immediate, (b) availability of disbursable funds by the Court, if needed and (c) cessation of occupation of the home by the husband without the payment of occupation rent to the wife.
In my view, the fact that the funds will be paid into court until further order of the court in accordance with Rule 66.03 of the Rules of Civil Procedure does not render the bringing of this motion vexatious, oppressive or malicious. The husband states that there is no pecuniary gain for the wife; I would say there is no immediate pecuniary gain. Certainly, the sale of the property moves the parties closer to being able to conclude their dealings with one another. It allows a motion to be brought to disburse some of the funds if needed by the parties as is suggested in the wife’s materials. The wife is not interfering with an entitlement of the husband – he is not entitled to occupy their jointly owned property indefinitely, with no occupation rent being paid to the wife. Moving this matter forward can hardly be said to be vexatious, oppressive or malicious. (Sparkman v. Sparkman, 2023 ONSC 41, para. 23)(emphasis added)
Final Thoughts
In navigating the interim sale of the matrimonial home, Sparkman provides a clear guide to the arguments that can hold weight. Speculative assertions of equalization payments down the road or presumed pending vesting orders carry little currency. Concrete evidence must show the sale will impair defined substantive rights. Likewise, vague claims of oppressive behavior fail unless directly connected to the property sale itself. The judge must be convinced real prejudice or malice exists.
When advising clients on pursuing or resisting an interim sale request, family lawyers would be prudent to ground their positions in the principles and reasoned analysis outlined in Sparkman. This case reinforces that strong legal reasoning, not speculative assertions or exaggerated accusations, is key to prevailing on this contentious issue.
Let’s continue to elevate the practice of family law in Ontario!
Cheryl Goldhart is a mediator and arbitrator who can make a difference in resolving your family disputes.
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