Property Division, Sharing & The Matrimonial Home

Can Wife Delay Selling House to “Declutter”? Or to Wait Out the Pandemic?

Written by Russell Alexander / (905) 655-6335

Can Wife Delay Selling House to “Declutter”? Or to Wait Out the Pandemic?

When spouses separate, they have to untangle their finances, formalize their divorce, and get on with their separate lives as soon as possible.

A big step in this process occurs when they sell the home and divide the proceeds.

Naturally, the objective is to get the best price possible for the former matrimonial home.  But as everyone who has even done this will know, there can be fluctuations in the real estate market that make it difficult to know the ideal time to list. Nobody has a crystal ball.

Although most divorcing spouses will agree that the home should be listed as soon as possible, this can mean different things to different people.  They may disagree on the best timing, and one of them may even want to deliberately delay and try and optimize the sale price. If this happens, what are the valid reasons for do so?  Waiting for the Spring market?   Waiting until the home can be “decluttered” or “staged”?  And – in these exceptional times – what about waiting for the COVID-19 pandemic to subside or get under control?

These were the questions faced by the court in Weitzner v. Lupu.  The spouses were plodding their way through a high-conflict divorce, with the court expressing “concerns about both party’s behaviour and judgment at various times in this litigation”.  These included numerous delays in moving various procedural steps along.

Although the spouses agreed in principle that the jointly-owned matrimonial home should be listed for sale, they disagreed on the timing of it.  In her initial court application, the wife had asked to have the home sold immediately, but now wanted to delay having it listed until August 2021. Then, she changed her mind and wanted to wait until the Spring of 2022 so that she could declutter and have the home staged, and so that they could benefit from the Spring market and hopefully obtain a higher price.  Finally, she raised the issue of the COVID-19 pandemic, as a reason for delaying the listing until October.

The husband objected, accusing the wife of delaying the sale entirely as a strategic measure – essentially to drag out the litigation even further, force him to deplete his funds, and erode his ability to afford a lawyer to represent him in bringing claims against her.

The court reviewed the facts, including the already-significant delay since separation.  It noted that absent other factors, the husband had a basic legal right as a joint tenant to sell the matrimonial home.  In order to get a court to override this, the wife had to “put her best foot forward” and prove there was a good reason for doing so.  She failed to do so here; in fact, she filed no evidence to demonstrate she would be prejudiced if the property were sold now.  To the contrary, the court found the immediate sale would be appropriate considering all the circumstances.

While adding the spouses should rely on the recommendations of real estate agents as to what needs to be done to get the house ready for sale, the court ordered that it should otherwise be sold as soon as possible, on a timely basis, with little or no delay.

The short takeaway is this:  Even on matters that require speculating and seeing into the future, the law requires divorcing spouses to act reasonably, and to back up their positions with evidence.  Especially with high-conflict divorce that might impact any children, courts are always focused on trying to speed things along and bring matters to a timely resolution.

For the full text of the decision, see:

Weitzner v. Lupu, 2021 ONSC 4701

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.