Sale of Family Home On Separation lawyers understand that when a BC family separation occurs the parties will now need 2 residences instead of just one. But how will the new home be paid for while the spouses are trying to settle the issues of child parenting time, child support, spousal support and division of family property? We know the Sale of Family Home On Separation is often an emotional issue. In today’s blog, Surrey family law and estate litigation associate Manbeen Saini explains the rules on whether a home will be sold before trial.
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The best family lawyers explain that an interim also called an interlocutory order is an order made at an intermediate stage of a legal proceeding, that is, before the final resolution of a legal matter. This article focuses on factors the court considers in making an interim, pre-trial Order for a sale of a former family residence. If you have a Sale of Family Home On Separation dispute call Manbeen Saini right away to find out you and your children’s rights.
The Family Law Act Sections
Sections 88, 89 and 90 of the Family Law Act of British Columbia govern interim orders respecting property division and family residence:
Orders under this Division
88 A spouse may make an application to the Supreme Court under this Division at any time before a final agreement or final order is made in relation to a family law dispute respecting property division.
Orders for interim distribution of property
89 If satisfied that it would not be harmful to the interests of a spouse and is necessary for a purpose listed below, the Supreme Court may make an order for an interim distribution of family property that is at issue under this Part to provide money to fund
(a) family dispute resolution,
(b) all or part of a proceeding under this Act, or
(c) the obtaining of information or evidence in support of family dispute resolution or an application to a court.
Temporary orders respecting family residence
90 (1) For the purposes of this section, “family residence” means a residence that is
(a) owned or leased by one spouse or both, and
(b) the ordinary place of residence of the spouses.
(2) The Supreme Court may make an order granting a spouse, for a specified period of time,
(a) exclusive occupation of a family residence, or
(b) possession or use of specified personal property stored at the family residence, including to the exclusion of the other spouse.
(3) An order under this section does not
(a) authorize a spouse to materially alter the substance of the family residence or personal property,
(b) grant to a spouse a proprietary interest in the family residence or personal property, or
(c) subject to subsection (4), grant to a spouse any right that continues after the rights of the other spouse, or of both spouses, as owner or lessee are terminated.
(4) If an order has been made under subsection (2), the Supreme Court may
(a) order that the right of a spouse to apply for partition and sale of, or to sell or otherwise dispose of or encumber, the family residence or personal property
(i) be postponed, and
(ii) is subject to the order made under subsection (2), and
(b) change the order made under subsection (2).
(5) Nothing in this section prevents the filing of an entry under the Land (Spouse Protection) Act.
Further, Rule 15-8 of the Supreme Court Family Rules (the “SCFR”) gives authority to the courts to make interlocutory orders respecting the sale of the family residence. It reads:
A court may order sale
- If in a family law case it appears necessary or expedient that property be sold, the court may order the sale and may order a person in possession of the property or in receipt of the rents, profits or income from it to join in the sale and transfer of the property and deliver up the possession or receipt to the purchaser or person designated by the court.
Based on the above rule, a court may make an interlocutory ( pre-trial) order for the sale of a family residence where it appears necessary or expedient to do so.
Sale of Family Home On Separation- The Law
The British Columbia Court of Appeal in Kooner v. Sangha, 2016 BCCA 147, cites the decision of Master MacNaughton in M. (K.J.) v. A. (P.D.), 2011 BCSC 1729 (B.C. Master), in providing a summary of the principles that may be considered and applied by the court when dealing with an application for sale of family residence:
- If a sale is not necessary then, viewed objectively, it should be advantageous to both parties;
- Any doubt about the justice of an order for sale should be resolved in favour of the status quo recognizing that the status quo for one spouse may perpetuate injustice for the other;
- Where children are involved, the court should consider their need for stability and easy access to their school and friends, especially in the period immediately following separation. However, stability for the children may be balanced by other factors which affect their best interests including maintaining a relationship with an access parent;
- The availability and affordability of alternative accommodation for each party and their dependents;
- The emotional condition of each party especially the party who has primary parenting responsibility;
- External economic factors such as a declining market or the wasting of the asset;
- The capacity of the parties to maintain the asset; and
- The inability of one party to buy out the other’s interest and the inevitability of the ultimate sale of the property.
Best Family Lawyer Tips
Further, the recent British Columbia Supreme Court decision of Sawka v. Sawka, 2019 BCSC 1833 (Sawka) provides an analysis of what expedient means. In citing the decision of Reilly v. Reilly,  BCJ No. 2561 (Reilly), Sawka notes:
23 The Court of Appeal in Reilly v. Reilly, confirmed that…a sale is expedient if it is advantageous to both parties.
24 In the Reilly case, the Court held that it (the sale of family residence) was advantageous to both parties because:
- a) There had been a marriage breakdown which occurred almost five years prior;
- b) The wife was apparently unable to maintain the family home;
- c) The husband was unable to purchase another residence;
- d) The family home would inevitably be sold to give effect to the division of the family property; and
- e) The children were all adults.
27 In addition to the foregoing factors, a sale of the Property may be advantageous in other ways. Mr. Justice Goldie in the Reilly case made the following comments at paragraph 37 of about the role of the judicial process:
 . . . It may be said the Divorce Act, R.S.C., c. D-3.4 and the Family Relations Act have a policy in common: where a marriage has irretrievably failed the judicial process should facilitate an expeditious break with a minimum of rancour, expense and time. Encouraging a settlement may accomplish these objectives, provided the proposed sale is found by the judge to be advantageous to both parties . . .
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In relying on Reilly and factual analysis used in Reilly, the court in Sawka held that all of the factors considered in Reilly were present in this case and therefore, determined that a sale of the family residence was expedient as it was advantageous to both parties.
We hope you have gained insight from our best family lawyer tips. Contact us in Vancouver, Surrey, Richmond, Kelowna, Fort St John BC, and Calgary, Alberta.