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Selling the Matrimonial Home – What if One Spouse Won’t Co-operate?

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Selling the Matrimonial Home – What if One Spouse Won’t Co-operate?

A recent decision called Ivancevic-Berisa v. Berisa shows what Ontario courts can do if one spouse refuses to co-operate in selling the matrimonial home post-separation.

When the husband and wife separated in 2010, they signed a Separation Agreement to the effect that the husband could say in the matrimonial home until it was sold, but that it had to be sold within a year, with the selling costs to be split between the parties. Subsequently however the husband – despite numerous requests by the wife – had refused to list the house for sale and demonstrated a “militant resistance” to doing so. More to the point, he told her that notwithstanding the Separation Agreement he did not intend to put the home up for sale, but rather planned to keep it for himself. He also said he would destroy all renovations and upgrades to it that they had made since they had purchased it as their matrimonial home.

Indeed, almost two full years later, the house had still not been sold, and the husband was still living in it, even though he had ample time to find new accommodation. In that time, he had been uncooperative with real estate agents, had refused the wife access to the home in order to get it appraised, had refused to pay for his share of the appraisal costs, and had refused to sign a listing agreement. Essentially, by failing to co-operate and refusing to give his consent, he was unilaterally blocking the ability to sell the home.

As a result, the wife was forced to bring a motion to the court for an order dispensing with the husband’s consent to take the necessary steps to list and sell.
(Incidentally, in answer to this motion the husband, who was self-represented, asserted that despite what had been agreed to in the Separation Agreement, he actually wanted to buy out the wife’s interest in the home. He also made lengthy submissions to the court which included evidence that had not been properly tendered from a procedural standpoint. The court nonetheless indulged the husband in hearing those submissions, but ultimately found them immaterial to the issues on the wife’s motion).

In the end, the court allowed the wife’s motion. For one thing, the terms of the Separation Agreement reached between the parties – by which they agreed to sell the home, not have the husband buy out the wife – clearly governed the matter. Next, the Family Law Act clearly allowed a court to authorize a home to be sold if one spouse is unreasonably withholding consent. Here, the husband had acted unreasonably in refusing to co-operate.

The wife was therefore allowed to proceed with the sale of the home without the husband, and at an appraised price set by her agent. The husband’s consent to the process was dispensed with, including eliminating the need for his to sign the listing agreement, as long as the 3.5-percent total commission that had been negotiated by the wife with the agent remained intact. The court further stipulated that the wife would be entitled to arrange showings of the home through the agent as long as she gave the husband 24 hours’ notice by email.

Finally, the husband would be allowed to stay in the home until closing, on one condition: that he co-operated with what was required of him under the order, namely to preserve the home and its contents, and keep it clean and presentable for showings. The court also warned that if the husband failed to comply with all of the terms of the Order, he could expect that the wife would seek an order for exclusive possession and he would potentially face contempt proceedings “which can have a very serious outcome.”

For the full text of the decision, see:

Ivancevic-Berisa v. Berisa 2012 ONSC 4943

http://canlii.ca/t/fsklf

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.