When a marriage breaks down, one of the first determinations that must be made is who will remain in the family home pending divorce. Generally speaking, when a relationship breaks down to the point that divorce is imminent, one party remains in the house with any children of the marriage, and one party relocates to a secondary residence until matters can be formally and legally resolved. The final resolution of a divorce involves an assignment, either agreed upon or as decreed by the courts, of assets and debts between the parties, as well as a determination of whether and how much spousal and/or child support is due from one spouse to the other and any relevant custody issues.

Sometimes, the parties to a pending divorce cannot agree with respect to who should live in the family home and, in some circumstances, one party may seek to acquire an order from the court to order that the house be sold and proceeds divided amongst the divorcing spouses. Whether and in what circumstances the courts of British Columbia will issue an order that a marital home be sold before the final divorce decree is issued (i.e., “pending divorce”) is the topic of this week’s blog.

A Marriage Begins; A Family Property is Acquired; A Marriage Ends

A recent case from the Supreme Court of British Columbia involved the claimant and the respondent, who had begun to live together in July 2002 and were married in July 2005. At the time of the court proceeding in 2024, the couple had two children, aged 17 and 16, respectively. The couple purchased a lot in 2018, upon which they built the family home that is the subject of this dispute and a workshop from which the family business is conducted. The family home includes a rental suite. Although the couple are both listed as joint tenants on the title to the family home, the workshop is owned by their company rather than by the parties in their respective personal capacities.

When the parties separated in January 2021, they all remained in the family home together until May 2021, when the claimant moved into the rental suite of the house. In October 2021, the claimant vacated the rental suite and relocated to a residence off-site on the family property. Thereafter, the claimant alleged that she had been repeatedly, violently, and sexually assaulted by the respondent throughout their relationship. Criminal charges were then brought against the respondent, and even though one of the couple’s children testified on the respondent’s behalf, he was convicted in February of 2023 of the crimes alleged against him. The respondent applied for a mistrial regarding the criminal proceeding that remained ongoing at the time of this hearing. Because of the criminal conviction, the respondent is not permitted to contact or be near the claimant. The children have largely ceased communicating with the claimant after the respondent’s conviction, and they live with the respondent on the family property in the family home.

Wife Seeks an Order for Interim Sale of the Marital Home

Following the resolution of the criminal matter, the claimant alleged that her children began to distance themselves from her and eventually stopped communicating or spending time with her. The claimant further alleged that, as she no longer worked for the family business, she had been forced to take on four different jobs to make ends meet. Even though she had not paid any child support to the respondent nor contributed to maintenance, upkeep and payments in respect of the family home, property or business, the claimant contended that her financial circumstances had forced her to move in with her sister and her sister’s children because she could not afford to rent residential space on her own. For these reasons, the claimant sought an order from the court to force the respondent to sell the family home and divide the proceeds between herself and the respondent so that she could be provided financial security.

The Legal Principles Applicable to an Interim Order for Sale of Real Property

When one spouse seeks to force the other spouse to sell the family home before a final divorce decree is issued, the courts will rely upon Rule 15-8 of BC’s Supreme Court Family Rules, which dictates that “a court may make an interim order for sale of the property if the court is satisfied that is ‘necessary or expedient’ to do so.” This assessment requires the court to engage in judicial discretion in ascertaining whether it is “necessary or expedient” to order the sale.

The person who applies for the order bears the onus of demonstrating to the court’s satisfaction that the sale is necessary or expedient, requiring the applicant to demonstrate that the sale is advantageous to both parties. In assessing this issue, the courts will consider the following criteria:

“a.   the financial circumstances of the parties—for example, if the property is wasting, or if a sale is inevitable, or if a party might be able to keep the home upon reapportionment of property;

b.   the availability and affordability of suitable alternative accommodation for each spouse and his or her dependents;

c.     the needs of the children, including stability, access to school, activities and friends, particularly in the period just after separation;

d.   external economic factors such as a falling market;

e.   the emotional condition of the spouses;

f.      whether a sale would promote early resolution of the matter; and

g.   whether the status quo should be preserved until trial.”

As noted by the court in this case, “the question of whether a sale is ‘necessary’ is primarily concerned with the parties’ financial circumstances, including whether either party requires access to the equity in the property to finance the family law litigation, maintain the property or support themselves, and whether a sale is ‘inevitable.’ Where a sale is not necessary, it may still be ordered provided it is advantageous to both parties.”

Application of the Law to the Facts of this Case

After reviewing all of the claimant’s evidence to support her claim that the sale of the family property was both reasonable and necessary, including the fact that all of the claimant’s equity was tied up in the property and she was not in a position to be able to afford to rent herself a place to live without accessing that equity, the court determined that the claimant had not successfully proven that the sale was necessary or expedient. In particular, the court noted that there was no evidence that the respondent could not maintain the home nor that it was wasting. In addition, although the respondent had access to the equity in the family home because he resided there with the children, the respondent was simultaneously incurring costs associated with the upkeep and maintenance of the family home, including paying the mortgage, in addition to which the respondent alone serviced all of the couple’s other joint debts, including paying the claimant’s cell phone bill. The claimant had not paid any amount towards the family home since she left and had also declined to pay the child support she was ordered to pay. Although the court acknowledged that the claimant’s living circumstances were other than ideal, given that she was living with a relative and could not afford a home of her own, there was no evidence that she risked losing her place in her sister’s home if the sale of the claimant’s family home were not ordered.

Moreover, the claimant provided no evidence that there was suitable accommodation available elsewhere for her children and the respondent if the family home were to be sold, nor that there was a suitable location to which to move the family business, which was operated from the same premises upon which the family home is located. To that end, the court noted that “an order for sale here presents a realistic risk of prejudice to the Company, which could have significant and immediate impacts on the children, given that they are presently wholly dependent on Mr. H. Further, there can be little doubt that an order for sale when the children are not in a shared parenting situation, would have a very disruptive impact on them.”

Because the court noted that “the complication of the Company owning the workshop at the Family Home suggests a cautious approach is warranted,” it declined to grant the order to sell the family home.

Vancouver Divorce Lawyers Assisting Clients With Their Family Property Matters

The family law lawyers at Meridian Law Group are experienced in assisting clients to navigate the choppy waters of family law disputes. Whether your divorce dispute relates to property division, domestic agreements, family violence, parenting issues, or child or spousal support, Merdian Law Group’s family law lawyers have the knowledge and expertise necessary to guide you through the process and ensure that your rights are preserved and protected at every step of the way.

Contact a family lawyer at Meridian Law Group today, either online or by telephone, at (604) 687-2277, to schedule a confidential and comprehensive meeting with one of our capable team members.