Case reference: Batler v. Batler (H.C.J.), 1988 CanLII 4726 (ON SC)
This historical case summary discusses the decision identified above. Later decisions and legislative changes may affect how it applies today. Obtain legal advice about your circumstances.
Family law — Property — Division of assets — Order for sale of property prior to trial — Husband requesting order for sale of jointly owned recreational property prior to trial — Wife opposing order because of her wish to acquire husband’s interest in property at conclusion of trial in lieu of equalization payment — No power to make order for sale under Family Law Act — Request to be made pursuant to Partition Act — Request granted — Wife’s claims at trial not being prejudiced by order for sale — Court reluctant to transfer property to satisfy equalization payment — Family Law Act, 1986, S.O. 1986, c. 4, ss. 9, 23 — Partition Act, R.S.O. 1980, c. 369 — Rules of Civil Procedure, rule 20.01
In proceedings for the division of property brought pursuant to the Family Law Act, 1986, S.O. 1986, c. 4, the respondent husband sought an order, prior to trial, for the sale of a recreational property owned jointly with the petitioner wife. The wife opposed the sale on the ground that she wished to retain the property and acquire the husband’s interest at the conclusion of the trial in lieu of an equalization payment.
Held, the order for the sale of the property should be granted pursuant to the Partition Act, R.S.O. 1980, c. 369.
The wife’s desire to purchase the husband’s interest in the property at a price to be fixed by the court should be rejected. A court should not transfer property to satisfy an equalization payment or allow a joint owner to purchase his or her co-tenant’s interest for a fixed price. Unless the parties agree to a transfer of property at an agreed upon price, the property should be sold in an open market to ensure that its fair market value is obtained. The wife’s claims will not be prejudiced by a sale of the property prior to trial if she is not claiming sole ownership or exclusive possession of the property.
There is no jurisdiction under the Family Law Act, 1986, to grant an order for sale of jointly held property. However, the husband is entitled to the relief sought under the Partition Act.
*source: Canlii
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