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Interim Sale Of Family Home

Interim Sale Of Family Home applications are increasing in BC with the stressful impact of COVID-19 and tough economic conditions for separating spouses.  If you are curious about the Interim Sale Of Family Home issues as it relates to your separation call us at any of our offices across BC in Fort St John, Kelowna, Vancouver, Surrey, Victoria, and Richmond. We act across the entire province.

Jaye Rutledge is an associate lawyer at our Fort St. John Branch of MacLean Family Law. She takes cases throughout Northern BC and has clients in Fort St. John, Dawson Creek, Chetwynd, Prince George, and out-of-province clients who previously lived in the North or have spouses currently living in the North. Jaye is originally from Fort St. John and returned home to practice law following graduation. Jaye can be reached at our Northern Bc office at 250 262 5052.

Interim Sale Of Family Home Lawyers 1 877 602 9900

When a married or cohabitating couple chooses to separate oftentimes one of the biggest assets that has to be considered is the home they resided in during the relationship. Many important issues must be considered in dealing with the division of the home and you should seek out a family lawyer to get assistance and ensure your rights are fully protected. In this blog, we will discuss what happens when one party wants the home to be sold before trial and the other doesn’t, typically because they are living in the home or expect significant positive market changes shortly. These applications are called Interim Sale Of Family Home applications.

Interim Sale Of Family Home
Fort St John Interim Sale of Family Home Lawyers 250-262-5052

Under Rule 15-8 of the Supreme Court Family Rules, a court may order the interim sale of family home when it is expedient or necessary to do so. This meaning of the words expedient and necessary was considered by the BC Court of appeal twice this year in the cases of Kapoor v Makkar 2020 BCCA 132 and Kapoor v Makkar 2020 BCCA 223.

Citing an older case, the court summarized the basic principles as follows:

[63]      The courts have discretion to order the interim sale of a family asset where it is necessary and expedient. The courts have considered a number of factors in doing so. These include:

  • Whether the sale is necessary. This is an important factor. If the sale is not necessary, any sale should be advantageous to both parties. Another factor is whether the sale will promote early settlement (as per Reilly v. Reilly1992 CanLII 742 (BC CA), [1992] B.C.J. No. 2561 (C.A.)), and/or whether the sale will defeat a spouse’s claim for reapportionment (Head v. Head, [1994] B.C.J. No. 1503 (S.C. Master); R.(L.M.) v. R.(J.F.)2009 BCSC 1332(Master));
  •   In addition, a question may arise as to whether the sale of the family home is inevitable, or whether a spouse might be able to retain it on a division of assets (Pierce v. Pierce(1994), 2 B.C.L.R. (3d) 31 (B.C. S.C.); Lede v. Lede, [1994] B.C.J. No. 1655 (S.C. Master); Wilson v. Wilson2009 BCSC 1834 (Master), aff’d 2009 BCSC 1600); and
  •  Another important consideration may arise as to whether a sale would effectively eliminate accommodation for a spouse and children or whether alternative accommodation is available (Leask v. Leask, [1994] B.C.J. No. 1821 (S.C. Master); Matheson v. Matheson, [1995] B.C.J. No. 441 (S.C. Master).

[64]      Finally, any doubt should be resolved in favour of the status quo (Bodo v. Bodo (1990), 1990 CanLII 2291 (BC SC), 25 R.F.L. (3d) 295 (B.C.S.C.)).

As these factors indicate, the first step is for the court to determine whether the sale is necessary, the clearest case of this being where neither party can afford to make the current mortgage payments on the home. If necessity is not found then the court must consider if it is expedient, or in other words, if it is in the best interests of both parties for the home to be sold. This is a complicated question, and the court gives several examples of factors that are relevant to determining expediency. Again citing an older case, the court says:

[22]        …Given the wide variety of factual patterns in family law actions it would be singularly foolish of me to attempt a definitive listing of factors that might be relevant to the determination as to whether a sale is “necessary and expedient”. However, those factors that have been considered in determining whether a sale should be ordered at trial will always be relevant. They include:

1. Children’s need for stability and easy access to their school and friends, particularly in the period immediately following the separation of their parents;

2. The availability (including affordability) of alternative accommodation for each spouse and his or her dependents;

3.The emotional condition of the spouses, especially the parenting spouse;

4. External economic factors (e.g., a declining market);

5. Wasting of the asset, and

6. The capacity of the parties to maintain the asset.

It is appropriate for the court to turn its mind as well to questions of efficiency and expediency. A determination of the value of the matrimonial property at or near the triggering event may facilitate the final resolution of the dispute.

Why Lock-Up Equity For Months When Money Is Needed?

This is particularly so in the vast majority of cases where the family home is the only asset with significant value. A judicial review of the evidence at an early stage may bring some reality to an emotionally laden conflict which can have only one outcome, the sale of the home and the equal division of the proceeds. Conversely, it may identify those situations in which there is a realistic expectation of a variation. Such a review can also focus the parties’ attention on the needs of their children during the period of transition from a united to a divided family unit.

Potential prejudice to a party must always be a factor in determining an issue on an interim basis that irrevocably alters the status quo.

As the court says, if they are not provided with significant persuasive reasons to sell the home then the matter will be resolved by maintaining the status quo until the issues can be more fully examined at trial. Therefore, to obtain a sale of a home from the court, the party seeking the sale must have a good basis for doing so.

Call Our Interim Sale Of Family Home Lawyers 1 877 602 9900

During the COVID-19 pandemic, it is especially important to seek out legal advice on the interim sale of the home, as the court will be dealing with novel issues relating to the pandemic. It is also valuable to have a lawyer who is located in the same physical area as your home. For example, in my practice in Fort St. John issues such as the long-suffering housing market, issues relating to alternative housing availability, winter conditions, and Northern BC’s response to COVID-19 are all relevant factors that may not be on the minds of lawyers from down south. Contact us today at 250-262-5052 to book a consultation with Fort St. John lawyers Jaye Rutledge and Ana Sadovska for all your property, parenting, and divorce needs.