March 5th, 2018 by Heidi Taylor

Often in family cases, the parties’ family home is the most significant asset. Separating spouses usually have difficulty residing under the same roof together so need to come up with an interim agreement or court order to address what to do with the family home. Will it be sold? Will the home be jointly owned into the future? Can one of the spouses buy out the other’s interest?

What if a separating couple cannot agree on what to do with their home? If a couple cannot agree on what to do with the family home in the short-term, then an application to court may be filed. If one spouse wants to have the property listed for sale, but the other is resisting a sale, then the spouse seeking the sale of the family home will have to show:

  • the shared use of the home is a ‘practical impossibility’; and
  • on a balance of convenience, she is the preferred occupant of the property

In determining whether to exercise discretion to order the interim sale of the family home, the following factors, amongst others, are to be considered:

  • Is the sale necessary?
  • Will the sale promote early settlement?
  • Is the sale of the family home inevitable?
  • Is alternate accommodation available?
    (i.e., see A.B. v. C.D., 2015 BCSC 2134)

The court has the discretion to order an interim sale and to make orders and directions about the conduct of the sale.

In a recent decision of Justice Weatherill, he considered an application to extend the date of listing a family home for sale (Danroth v. Whiting 2017 BCSC 1814). Master Scarth had previously ordered that the family home be listed for sale on October 1st, 2017, if the husband could not raise sufficient funds by that date to buy out the wife’s interest in the family home. The home was a valuable asset, being appraised at $3.5 million with $1.2 million owing on the mortgage leaving total equity of $1,150,000. Thus to buy out the wife’s interest, the husband had to raise $2.35 million (mortgage plus ½ equity in the home). The husband had appealed the Master’s decision and then applied to ‘stay’ the order to allow the husband to stay in the family home and not list for sale until the appeal was heard.

Justice Weatherill ordered that the property can still be listed for sale on October 1st, but no sale of the property or application to court for approval of sale may take place until such time as the appeal of the Master’s order has been decided (the appeal was set to be heard October 12, 2017).

Justice Weatherill’s comments to the parties were also of interest generally to those involved in family disputes:

[27] Now, I do not know anything about this case other than what I have read in the application materials, but what I have read is enough to see that this is a tragic situation and that these parties, for lack of a better phrase, are blowing their brains out fighting. The inevitable result will undoubtedly be that they will regret, if they don’t already, not having taken a step back and considering whether there is another, less tragic, way of resolving their dispute.

[28] I know the parties have tried mediation but now that their 21-year-old child is becoming embroiled in the fight, with his own counsel, claiming a resulting trust, it is going to get even more complicated, time consuming, expensive, and more importantly it is going to get even more emotionally charged than it already is. This family is destined for complete ruin if they carry on as they are.

Often there are alternative avenues available to parties to resolve their dispute including with negotiation, mediation, collaborative law, or arbitration. The cost (both emotional and financial) of filing multiple court applications to resolve an orderly division of property and support and parenting arrangements is rarely worth the fight.