Calgary Separation Home Sale Lawyers help separated Calgary family law clients, negotiate, mediate, arbitrate or litigate the division or sale of the Calgary family home. Peter Graburn, our senior Calgary family lawyer, writes this article as the second one on the important topic of what happens to the Calgary matrimonial home on separation.
Series Part 2 of 3 – “Partition & Sale” of the Alberta Matrimonial Home 1 877 602 9900
As previously indicated, when couples separate or divorce, one of the biggest decisions they have to make (after how to parent their children) is what to do with their family home. Calgary Family Home Sale Lawyers know separated couples can agree to either: sell the home; one spouse will remain in the home (ie. with the children), or; (rarely) share the home with the children (commonly called “nesting”). However, sometimes the couple cannot agree on how to deal with the family home, raising three (3) possible legal options:
- Exclusive Possession – which spouse should remain in the home;
- Partition & Sale – whether the home should be sold, and;
- Occupation Rent – which spouse is responsible for paying the home’s expenses if only one spouse lives in the home.
In a previous article on Calgary Matrimonial home occupation rent, we looked at the issue of Occupation Rent. In this article, our senior Calgary Family Home Sale Lawyers look at the second issue: “Partition & Sale”.
Calgary Separation Home Sale Lawyers – Why Partition and Sale? 1 877 602 9900
An agreed decision to sell the matrimonial home is difficult enough, but what if one spouse does not want to sell the home and wants to remain there? This is particularly difficult if both spouses are registered co-owners of the home. But how can one co-owner (spouse) force the other co-owner (spouse) to sell the matrimonial home? In such a case, legislation has been enacted to deal with this situation.
Legislation regarding the forced partition and sale of jointly owned property in Canada goes back to at least 1868 (300 years earlier in England) with the passage of the Partition Act, which required either the division of the land between the co-owners or the sale of the land unless the Court “sees good reason to the contrary”. In Alberta, this principle of forced sale is continued and codified in the Law of Property Act, which sets out three (3) possible options [under s. 15(2)] a Court must choose between to deal with the land, including:
- physically dividing the land between the co-owners;
- selling the land and dividing the sale proceeds between the co-owners;
- selling the land to one of the co-owners.
Calgary Separation Home Sale Lawyers – Broad Discretion
However, while the Law of Property Act suggests it is mandatory to sell the home, the Act gives no factors or direction to the Court to determine which option to choose in any particular situation, ultimately leaving the Court with broad discretion to make this decision based on “the most logical and reasonable option” (Ross v. McRoberts, 1999 ABCA 227 at para. 16) or “the most equitable for all of the parties” (ie. fairness) (Sheffield Welding and Fabricating Ltd. v. 958760 Alberta Ltd., 2003 ABQB 181 at para. 15; Polanski v. Roth, 2008 ABCA 378). Subsequently, it has been left up to the Courts to determine what factors will be looked at in deciding which if any of these three (3) options will be granted, including:
● whether either of the spouses can realistically retain the home (ie. qualify, or find a co-signer, for a mortgage on the home);
● whether there is another property to be divided;
● whether the property must be sold now or can wait until later;
● the willingness and ability of the parties to manage the sale of the home.
So, can a co-owner spouse automatically force the other co-owner spouse to sell the matrimonial home on separation if the other spouse does not agree?– no. But each spouse has a prima facie (ie. presumed) right under the Alberta Law of Property Act to request the Court to order the sale of the home, which the Court (at least in the family law setting) has a fairly broad discretion to decide on.
Call Our Calgary Separation Home Sale Lawyers
Applications for Partition and Sale are only one of the issues separating couples may need to consider if they cannot agree on how to deal with the dearest family asset – the family home. Our highly rated Calgary Separation Home Sale Lawyers assist our Calgary family law clients to understand both the mandatory nature of the legislation and the broad discretion of the Courts to resolve this highly conflictual and emotional issue. Call us or set up an appointment for our Calgary office.
