Our Dawson Creek family lawyers and Fort St John BC family property division lawyers handle numerous Dawson Creek family property and family debt division cases each year from our Fort St John and Dawson Creek office. In cases involving the family home, often called the Matrimonial Home, our Dawson Creek Family Lawyers will often have experts appraise it so it can be divided. However, our Dawson Creek Family Lawyers can also seek an Order for Sale which is the only true way to value the home if parties can’t agree on what it is worth. Sometimes one party to a family breakdown is stubborn and blocks an appraisal.
In other cases our Dawson Creek Family Lawyers know the home must be sold to free up money to settle the case, to pay off arrears on a mortgage, to salvage as much equity as possible if foreclosure proceedings have been commenced or lastly to facilitate a fair division of Dawson Creek family property after trial.
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Sole Conduct Of Sale Of family Home
Our Dawson Creek Family Lawyers just reviewed the recent case of Andermatt v. Tahmasebpour, which explains the test for giving one spouse sole conduct of sale in Dawson Creek family cases.
[111] While the claimant and the respondent agree that the matrimonial home should be sold and the proceeds divided, they each seek sole conduct of the sale.
[112] Section 97 of the FLA authorizes the court to order the sale of property for the purpose of giving effect to a division of property. Rules 15-8(1) and (2) permit the court to make orders for the sale, and the conduct of sale, and orders requiring a person in possession of the property to join in the sale and transfer of the property.
[113] In McLachlan v. McLachan, 2013 BCSC 1733, the court held, at para. 67:
There is no singular test for granting sole conduct of sale. Rather, the court considers all factors relevant to affecting a sale ordered, to determine whether granting sole conduct of sale is necessary or expedient. The parties’ inability to cooperate or agree with one another may provide appropriate grounds.
[114] Here, joint conduct of sale is not practical. The high level of conflict between the parties prevents them from cooperating effectively. An order for sole conduct of sale is necessary.
[115] The respondent contends that as the party in possession of the matrimonial home it is most convenient that he have the sole conduct of the sale. He also asserts the claimant comes to court with unclean hands and should not be trusted with the sale of the matrimonial home. In support of that assertion, the respondent refers to the claimant’s transfer on March 17, 2014 of approximately $44,000 from the account of DORI to a “secret account”, and also contends she misrepresented herself to the Court by describing her position with DORI as “Director of Business Development” when she was not a director of the company. As I have previously noted, that title simply described the functions Ms. Andermatt performed for the company. The respondent’s allegation that the claimant falsely represented to the Court that she held the office of director is without merit.
[116] The claimant did make an unauthorized transfer of one-half of the funds in DORI’s account to an account she opened to hold those funds. She did so after the respondent had significantly increased his withdrawals of funds from DORI. Through her counsel, Ms. Andermatt notified the respondent on the same day she withdrew the funds. CIBC later reversed the transfer. The funds are now held in an account requiring the signatures of both parties. The claimant did not expend any of the funds while she held them in her account. While the claimant ought not to have made the unauthorized transfer, in the particular circumstances of this case her conduct does not disqualify her from consideration for having conduct of the sale of the matrimonial home.
[117] The respondent also argues the claimant misled CRA by filing incorrect tax returns in which she split the rental income from the West 13 property equally with the respondent, rather than declaring all of that income on her own return, and also provided inaccurate information concerning her Andermatt Consulting income and expenses. The claimant contends the respondent was responsible for preparing her tax returns for 2009 through 2012. Regardless of whether or not that was the case, the claimant made voluntary disclosure to CRA upon receipt of professional advice regarding the errors in her tax returns. I find that the claimant’s prompt and full disclosure is inconsistent with any intention to mislead CRA. The respondent has not established any conduct on the part of the claimant that would disentitle her to conduct of sale of the matrimonial home.
[118] For her part, the claimant asserts that the respondent, who is living mortgage free in the matrimonial home, has an incentive to delay the sale.
[119] With the assistance of her counsel, Ms. Andermatt conducted the sale of the West 13 property in an expeditious, business-like and efficient manner. In my view, that is the determining factor here.
[120] The matrimonial home located at 3508 Inverness Street, Vancouver, British Columbia will be listed for sale forthwith and sold. The claimant will have sole conduct of the sale, which will be subject to court approval.
[121] I also make the following orders with respect to the sale of the matrimonial home:
(a) the respondent will allow the realtor selected by the claimant access to the property for the purpose of the initial assessment of market value and determining if there are any cosmetic improvements or repairs that need to be done to improve the value of the property;
(b) the respondent will allow the realtor to post signs on the property;
(c) the realtor may conduct open houses on 48 hours’ notice to the respondent and may otherwise show the property to prospective buyers on 24 hours’ notice to the respondent;
(d) the respondent will ensure that the property is kept in a clean and tidy condition for those open houses and showings; and
(e) neither the respondent nor the claimant will be present during any showing of the property.
[122] The net proceeds of sale of the matrimonial home will be held in trust by the claimant’s solicitor and will be paid out as follows:
(a) pay to the claimant $192,000 on account of the excluded property from her inheritance;
(b) the remainder will be divided equally between the parties subject to the following adjustment:
- from the respondent’s share, payment to the claimant of $54,105 on account of the value of her interest in DORI.
[123] I have received no evidence on this application of the value of the contents of the matrimonial home. The parties will divide equally the household furnishings and all other contents of the matrimonial home, other than any excluded personal property of the parties, or any property of DORI. While the Court expects the parties to work out that division without further judicial intervention, the parties are at liberty to apply for further directions on the disposition of the contents of the matrimonial home, if necessary.
If you have a difficult family law case involving real estate, the family home or other family property such as a family business call our experienced Dawson Creek family lawyers to set up a consultation.
