Ivancevic-Berisa v. Berisa
A 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 brought a motion to the court for an order dispensing with the husband’s consent to take the necessary steps to list and sell.
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.
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 him 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.”
The court in Ivancevic-Berisa v. Berisa held that a spouse may be permitted to remain in the home during the sale process, their continued occupation is contingent on compliance with court orders. Failure to adhere to these conditions could lead to serious consequences, including exclusive possession orders and even contempt proceedings.
A similar issue arose in Wright v Wilson, 2024 ONSC 1512, where the court was once again tasked with addressing a spouse’s unwillingness to facilitate the sale of the home.
Wright v Wilson, 2024 ONSC 1512
The parties were together for just under 20 years. The Applicant mother moved out of the matrimonial home in June 2020, and the Respondent father had been living there on his own ever since. They had two children, one who was in university and living in residence, and another at a private boarding school. Interestingly, when the children were not at school they did not stay overnight at the matrimonial home with their father, rather they stayed at their mother’s rental accommodation. This would prove an important fact.
The mother brought an application seeking an order permitting her to proceed with the sale of the matrimonial home, without the father’s approval of the listing and sale. As well as order for vacant possession and costs.
Aside from a three-month period from December 2020 to February 2021 when the Respondent father made mortgage payments, the Applicant mother paid all the costs for the Matrimonial Home, including the mortgage, line of credit, property taxes, and insurance, while the Respondent father continued to live there. Additionally, the Respondent father had not paid any child support or contributed to Section 7 expenses, except for paying for the children’s tennis at his club. The Applicant covered all other expenses for the children and had to borrow money to cover the home’s costs while supporting herself and the children.
Even though in his Answer the Respondent father agreed to selling the Matrimonial Home, for four years he repeatedly dodged the Applicant mother’s efforts to resolve the sale of the matrimonial home. She even hired a real estate agent to contact the Respondent about selling the home, but he did not reply to any of her attempts.
The court ordered the sale of the Matrimonial Home and dispensed with the Respondent’s consent for the following reasons:
First, the Respondent had been living in the Matrimonial Home for nearly four years without contributing to its financial upkeep, forcing the Applicant to take on these financial burdens alone. The court noted that the Respondent’s continued occupancy without financial contribution created an inequitable situation where he benefited rent-free at the Applicant’s expense.
Second, the court has discretion to order the sale of a matrimonial home and to dispense with a spouse’s consent of the same if it is unreasonably withheld. The Respondent had repeatedly obstructed the Applicant’s efforts to sell the home and made no real effort to present any actionable alternative.
Additionally, the court found that selling the home would not adversely affect the children, as they no longer resided there and primarily stayed with the Applicant at her rental home.
The court also determined that the sale would not prejudice either party’s claims in the family law proceedings, as the net sale proceeds would be held in trust until further court order or mutual agreement. Finally, the court granted the Applicant sole authority over the sale, including engaging the real estate agent, setting terms, and finalizing the transaction, to ensure that the process proceeded without further obstruction.
Essentially, by failing to co-operate and refusing to give his consent, the Respondent was unilaterally blocking the ability to sell the home the court’s decision sought to remedy that.
Notably, the Respondent Father did not file any affidavit or other evidence in response to this motion despite being served with the motion materials and previously represented by a lawyer. Accordingly, this matter proceeded on the uncontested evidence contained in the Applicant’s affidavit.
