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In a recent Ontario decision, a court granted a husband possession of the matrimonial home the wife had been living in, after she failed to comply with an order to sell the home.

Wife Does Not Comply with Order to Sell Home 

The parties were married on August 11, 2001. They separated after 17.5 years of marriage on January 15, 2019. They have two children, aged 17 and 14.

The parties jointly owned the matrimonial home in Toronto.  

In April 2019, the husband voluntarily vacated the matrimonial home. Since the separation, the husband had continued to pay 50% of the capital expenses associated with the matrimonial home, including property taxes and repairs. Since separation, the husband had paid the wife child support for the parties’ two children in the sum of $1,067 per month. 

After separation, the husband had initially rented an apartment close to the matrimonial home. However, he was unable to continue to afford to do so while still maintaining one-half of the capital expenses associated with the matrimonial home, paying his own housing and living expenses and supporting the children. As aresult, the husband moved to Brampton to reside in his brother’s apartment, in which he rented a bedroom.

In January 2020, the parties had attended a case conference, at which they agreed that the matrimonial home would be listed for sale and sold. 

Despite initially retaining a real estate agent, the matrimonial home was never listed for sale.

As a result, the husband sought a court order to compel the wife to comply with the consent order, an order granting him sole carriage of the sale of the matrimonial home and an order dispensing with the need for the wife to consent to and/or sign any sale documentation, to effect both the listing and sale of the matrimonial home.

The husband claimed that the wife was obstructing the sale of the matrimonial home by her willful refusal to respond to him and his counsel and that, as a result, she ought to not be involved in the listing and/or sale of the matrimonial home.

Finally, the husband sought a temporary order for exclusive possession of the matrimonial home, so that he may take the necessary steps to ready the matrimonial home for sale, including the decluttering, and arranging of the repairs needed. He claimed that he had no faith that the wife would take any steps to ready the house for sale, even if the court ordered her to do so. 

Court Grants Possession of Home to the Husband

The court found in favour of the husband, stating:

“The wife provided this court with no evidence in regard to the motion. Had the wife had a reasonable explanation for her lack of participation in the case since the spring, she could have provided that information to the husband’s counsel or taken the minimal steps necessary to inform the court of any issue that prevented her from participating. The court can only reasonably infer from the husband’s evidence that the wife willfully breached the court order in several ways. Without question, the wife is aware that she is in breach of the Court order.  She participated in the January 24th, 2020 case conference. She had a lawyer present at the case conference acting as her agent. The wife took some steps to comply with the terms of the final consent order, albeit, only to provide the husband with a key to the matrimonial home and to choose a listing agent and sign a listing agreement. I am satisfied that the wife has received the husband’s emails and texts and the correspondence from the husband’s lawyer as well as the motion material. She has chosen not to respond to or attend the last two events in this case – the urgent case conference and this motion. In the absence of any information that would support otherwise, I find that the wife has intentionally failed or refused to comply with the consent order in the respects mentioned above.” 

Having found that there would be little hope that the wife would follow the terms of the consent order in terms of the sale of the matrimonial home, the court granted exclusive possession of the home to the father so that he could ready the home for sale.

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At Baker & Company in Toronto, we take the time to meet with you and understand your unique needs in order to guide you through your next residential real estate transaction.  We rely on our broad base of experience and expertise to provide exceptional legal advice and risk management. Call us at 416-777-0100 or contact us online for a consultation.

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