Property Division, Sharing & The Matrimonial Home

Should Court Foster Husband’s Unrealistic Future Plans?

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Written by Russell Alexander / (905) 655-6335

Part of the court’s role in deciding Family Law matters is to make orders that help move matters forward between a divorcing couple, to the point where they have realistic plans for their children as well as for their own (separate) future lives.

In Kocian v. Kocian, the court had to assess the feasibility of the husband’s plan for the future against the realities of the present.
After the couple separated, they continued to live in the matrimonial home, until the wife took the children to go live with her mother.

The husband declared that he was interested in buying out the wife’s share of the matrimonial home – once he managed to get a better job. He was currently earning a very modest income.

The wife was not on-side with the plan. She wanted to sell the home right away, and therefore as part of the divorce proceedings asked the court for a partition and sale order (which was essentially a court-imposed mechanism which would force the husband to participate in selling the home immediately).

The court granted her request. It observed that without the requested order, the equity in the home might continue to erode; indeed any further delay gave rise to a real danger that the home would actually have a negative value, once ongoing expenses were taken into account.

More to the point, the husband stated plan to continue to live in the house at some unspecified point in the undetermined future was simply not one that the court could endorse. The court put it this way:

The husband makes $24,000 per year. He has not been paying child support. He says he wants to buy the house when he gets a better job. The husband’s desire to continue residing in the matrimonial home until some indefinite time in the future is unrealistic.

The home was ordered to be sold prior to the divorce trial, with the wife being given control of the sale process — except that she was required to confer with the husband about the selling price. Any surplus funds that were realized after the sale were to be held pending trial.

For the full text of the decision, see:

Kocian v. Kocian (2013), 2013 ONSC 5553

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, 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. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.