In O’Brien v. Fitzgerald-O’Brien, the separated couple – both aged 69 – were married in 1991, but apparently were in no hurry to formalize their divorce. In fact, they weren’t even clear on the exact date of their date of separation: The wife said it was in 2008, while the husband said it was 2014.
Either way, there was no dispute that the husband moved out of their jointly-owed matrimonial home in 2014, and bought himself another home in a different community. He made no mention of selling at that time, nor for several years after that.
But in 2018 the husband started asking the wife about selling. He wanted the equity still left in the home, so that he could pay off his debts and retire. When the wife refused, he applied to the court for immediate sale of the home. He claimed she had no justifiable basis for opposing it, especially since she’d already enjoyed the home for several years by that point.
The wife continued to resist, and eventually the matter came before the court in 2022. She asked the court to reject the husband’s request to sell, and instead to formally grant her permanent exclusive possession of the home, pending trial and likely beyond.
In support for this, the wife said she had a modest income, and no alternative accommodation to move to. She was still providing housing to one of the now-adult children of the marriage, who was 28 and unemployed. At least until a trial could be held, she said she wanted to maintain the same standard of living she had during the marriage – something that could not happen if the home was ordered sold now.
The court began by noting that by law, the husband as joint owner of the home had a right to ask for partition and sale, under the provincial Partition Act. This remains true even where it is a matrimonial home at stake, unless the wife could demonstrate that her rights under the Family Law Act to exclusive possession pending trial, or to an equalization payment at trial, would be prejudiced.
But in this case, the wife not really seeking exclusive possession pending an eventual sale at all. What she was really looking for, was effectively an order that the home not be sold at all. To this, the court said:
The difficulty with that position is that a claim for permanent exclusive possession is not realistic. The court cannot compel one joint tenant to sell to the other. Nor can it give either joint tenant a right of first refusal.
The only way the wife might achieve what she wanted, was if it appeared she would be receiving an equalization payment from the husband after a full trial. Then she might offer to set it off against his share of the home equity. But that not the case here; the spouses were in approximately the same financial position.
Also, the overarching purpose of an exclusive possession order is to protect any children, by ensuring their lives remain stable while their parents resolve their legal issues. But there were no dependent children here who might stand to benefit from the wife’s plan.
Having ruled these arguments out, the court simply resorted to section 24 of the Family Law Act, which sets out the factors to be considered when determining whether to grant an order for exclusive possession. Those include:
- The best interests of any children affected;
- Existing orders covering family property or support;
- The spouses’ financial positions;
- Any written agreement between the parties;
- Whether other suitable and affordable accommodation is available; and
- Any spousal violence against the other spouse or children.
Here, none of these factors overrode the husband’s right to sell. Importantly, the court noted the wife had especially fallen short in providing evidence as to a lack of affordable and suitable accommodation for her and her son. All she did was make a bald assertion that she could not find anything.
The court concluded, “The sale of the home is inevitable. The [wife] has benefited from exclusive possession of the matrimonial home since 2014. There is no valid reason to delay the sale any longer”. It ordered the home was to be listed for sale within 30 days, at a price recommended by a mutually-chosen realtor.
Full text of the decision: O’Brien v. Fitzgerald-O’Brien, 2022 ONSC 4971 (CanLII)