Is an Order for the Sale of a Jointly Owned Matrimonial Home Automatic upon Separation?

In the case of Mudronja v Mudronja, throughout the proceedings Mrs. Mudronja resisted Mr. Mudronja’s insistence upon the sale of the jointly-held matrimonial home. 

During the preliminary proceedings the Wife maintained that her equalization entitlement from her husband would exceed the value of his one-half interest in the jointly-held home. The court, in allowing for maximum flexibility pending trial, did not order the home sold in the interim.

At trial the Wife argued that if there was going to be a sale of jointly-held home, she should have the first right to buy the home in preference to any arms-length purchaser.

The law is well settled as to the right of a joint tenant to the highest price possible for his or her interest in the value of jointly held property which may be more than the appraised value of the property1 & 2. In today's real estate market, the appraised value of the property may not reflect the fair market value. The true test of the fair market value is to sell the property in an open market. Unless the parties agree to a transfer of the property at an agreed price, the property should be listed for sale and sold, to ensure that fair market value is obtained.

Neither of the joint owners should be given a  first right of refusal as this would detract from the very principle that fair market value and best price for property can really only be obtained by exposing the property to a sale in the open market. There is nothing in the Family Law Act to suggest that, absent consent, one spouse should have a special right to purchase the matrimonial home. As a matter of general principle, while a matrimonial home occupies a special and separate place in the statutory scheme established by the Family Law Act, once the matrimonial home is ordered to be sold, each spouse is entitled to receive fair market value for his or her interest in it3

It is usual that the listing agent will be selected by the parties' counsel in the event the parties are unable to agree on the agent. In the event that either party neglects or refuses to cooperate with listing the property that party’s consent to the listing and sale will be dispensed with by the court and the other party authorized to sign all documentation to effect a sale at fair market value. Either party may offer to purchase the property on the market in open competition with other interested purchasers.

1. Batler v. Batler (1989), 67 O.R. (2d) 355 (H.C.J.)

2. Buttar v. Buttar 2013 ONCA 517

3. Martin v. Martin [1992] O.J. No. 656

April 2015