Although it can take years for a family law proceeding to reach trial, there are some interim relief options available that allow the parties to deal with pressing issues. One issue that often comes up is the family home. Often, both parties will be making a claim for the family home, but one party may want the property immediately sold if it is not financially sustainable or for other personal reasons. When that home is considered family property, Rule 15-8 gives the Court discretion to order the sale of the property.
Rule 15-8(1) of the Supreme Court Family Rules reads as follows:
Court may order sale
(1) 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.
The Court in Donnelly v. Weekley, 2015 BCSC 1340, described the test as whether the sale is “necessary or expedient”. In Reilly v. Reilly, 1992 B.C.J. No. 2561 (“Reilly”), the Court adopted the test of “advantageous to both parties” in place of “expedient”.
M. (K.J.) v. A. (P.D.), 2011 BCSC 1729, summarized the principles to be considered and applied by the court when dealing with an application under Rule 15-8, which include:
- 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 an 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 others interest and the inevitability of the ultimate sale of the property
Just recently, Angela Thiele, senior family law partner at Lindsay Kenney, successfully defended a case where the respondent, Ms. Greenwood, was seeking the sale of the family home. In Morrison v. Greenwood, 2020 BCSC 1356, the Court found that the immediate sale of the home was not necessary, as Ms. Greenwood could afford to maintain the family home’s expenses. However, it was inevitable that the house would be sold, as the claimant, Ms. Morrison, was not in a financial position to buy out the Ms. Greenwood’s interest in the home.
However, Ms. Thiele was successful in arguing that the sale was not expedient, as it would not be advantageous to both parties. While the sale would be advantageous to Ms. Greenwood because it would convert the family home into cash, it would not be advantageous to Ms. Morrison, who had been living in the home for the last twenty years. If the property was sold, Ms. Morrison would be forced to relocate. As an elderly lady with limited financial means, she would likely be forced to move into shared accommodation, increasing her risk of exposure to Covid-19.
In addition, the Court noted that a sale would force Ms. Morrison to use more of her limited resources than she currently does on alternative accommodation, which would therefore reduce her ability to meaningfully pursue her claims in the case. It was concluded that a sale would therefore have the effect of putting unfair pressure on Ms. Morrison to settle her claims before trial and would provide a strategic advantage to Ms. Greenwood.
The Court also declined to exercise its discretion under Rule 15-8 in N.N.N. v D.E.B., 2016 BCSC 1778. The defendant, D, argued that the family home was the only significant asset owned by him and his spouse and that a sale would allow him to purchase a townhouse in the same area without needing additional financing. The defendant also argued that a sale would alleviate tension between the parties and facilitate a shared parenting arrangement.
The plaintiff, N, grounded her defense in their child, arguing that a sale would disrupt the child’s stability and established relationships. The child had nearby friends and playmates as well as amenities and activities that she regularly attended. The plaintiff also raised the possibility of purchasing D’s interest in the home and keeping it for herself and their child.
The following reasons were provided by the Court:
[22] The sale of the home cannot be said to be “necessary” at this point. The property is free from encumbrances and thus the cost of maintaining the property is sustainable. There is no threat of foreclosure or execution pursuant to registered judgments. The property is not wasting.
[23] While as D suggests the sale may be effective in forcing the parties to find other accommodations which may facilitate the conclusion of satisfactory parenting arrangements, there is also the possibility that the sale proceeds will simply languish in trust as the issue of excluded property is presently in dispute and there are other claims with respect to the proceeds which may make even an interim division of the money impractical.
[24] As to whether a sale is inevitable, I cannot say that such is the case at this point. There is a realistic possibility that N may be able to purchase D’s interest in the property and the family home is presently providing a home for E in a community and environment with which she is familiar.
[25] In all of the circumstances, I am not satisfied that a sale of the family home is necessary and nor is it advantageous to both parties at this time.
In contrast, a successful case for the sale of the family home was made in Sawka v. Sawka, 2019 BCSC 1833. The Court found that all of the factors considered by the Court of Appeal in Reilly, were present. These factors included: a marriage breakdown which occurred almost five years prior, a spouse’s inability to maintain the home, a spouse’s inability to purchase another residence, an inevitable sale and independent adult children. Given these factors, the sale was found to be advantageous for both parties. The Court also noted a sale of the property having the following additional benefits:
- It will release the equity in the property to the parties so that they can each find another residence;
- It will eliminate, going forward, many of the issues in this family law claim which are created by the property and thereby reduce the issues in dispute at trial; and
- It may facilitate settlement of the remaining issues between the parties.
If an interim sale is ordered, a further issue involves the conduct of the sale. The need for court intervention in obtaining an order for sale typically means that the other party does not consent. The non-approval of the opposing party may present additional challenges in selling the property and therefore render joint conduct of sale impractical. In McLachlan v. McLachan, 2013 BCSC 1733, the Court held:
[67] There is no singular test for granting sole conduct of sale. Rather, the court considers all factors relevant to affecting a sale ordered, to determine whether granting sole conduct of sale is necessary or expedient. The parties’ inability to cooperate or agree with one another may provide appropriate grounds.
Having sole conduct of sale and the liberty to list and sell the property on your own terms will avoid further litigation and associated expense and delay.
Whether an application for an interim sale of a family home will be successful is highly fact-dependent. Should you or someone you know have similar issues in their family law matter, reach out to our Family Law Group.
 | Fanda Wu Lawyer, Family Law Group Lindsay Kenney LLP – Vancouver Office |
 | Jasmin Chohan Articling Student |