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  • Writer's pictureJared Davies, Lawyer

Selling the matrimonial home on an interim basis pursuant to Sparkman v. Sparkman, 2023 ONSC 41


The applicant wife seeks an order for the sale of the matrimonial home, while the respondent husband opposes this motion. The husband states that the wife is being vexatious and his substantive family law rights would be jeopardized if the motion were allowed. The wife contends that she has been asking for the sale for several years.


The main issue in this case is whether the court should force the sale of the home on an interim basis. However, this issue is broken down into several other issues.

[5] The parties acknowledge that the court in a family law proceeding may grant an order for partition and sale under s. 2 of the Partition Act R.S.O. 1990 c. P. 4 when one owner seeks such an order unless:

a. an interim sale will prejudice a substantial right of one of the parties under the Family Law Act (Silva v. Silva 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436, [1990] O.J. No. 2183 para. 23) or

b. the responding party demonstrates that the applicant’s conduct in seeking the order is malicious, vexatious or oppressive (Latcham v. Latcham 2002 CanLII 44960 (ON CA), [2002] O.J. No 2126 para. 2)

The husband argues that both exceptions apply and the wife strongly contests this.

Legal Analysis

Issue One: Substantive Rights under the Family Law Act

A central issue is whether an interim sale of the matrimonial home would prejudice the husband's substantive rights under the Family Law Act. The husband argues that such prejudice exists due to pending equalization claims. The court's analysis draws upon precedents, such as Silva v. Silva and Kamboh v. Majeed, to conclude that the sale can proceed without significantly interfering with the husband's substantive rights to equalization. With no imminent equalization process, the court deems the partition and sale appropriate partly because the money will be paid into court and equalization can be determined later:

[11] The husband’s net family property calculation is not complete. Therefore, the equalization process is not imminent. Further, where the opposition to the sale is based upon a desire to have funds available for payment of an eventual equalization claim, the courts have generally allowed the sale to proceed: Kamboh v Majeed, 2021 ONSC 892, para. 33

The husband further argued that his right to a vesting order in the home would be prejudiced if it were sold at this stage. The problem, the court said, was that there was no vesting order being asked from the court:

[13] The Court has a broad discretion to make vesting orders; the onus is on the person seeking a vesting order to establish that it is appropriate (Lynch v. Segal 2006 CanLII 42240 (ON CA), 277 DLR (4th) 36 (ON CA), at para. 32). The payment liability, as well as the amount of the liability, must be established before a vesting order can be made. The vesting order may be made if it is necessary in order to ensure compliance with the payment obligation. (Lynch, at para. 32). This can be established if “the previous conduct of the person obliged to pay, and his or her reasonably anticipated future behaviour, indicate that the payment order will not likely be complied with in the absence of more intrusive provisions” (Lynch, at para. 32). There should also be a reasonable relationship between the amount of the asset sought to be vested and the amount of the liability (Lynch at para. 33) The respondent claims that the test at this stage is whether there is a genuine issue for trial in respect of the vesting order Walters v. Walters, 1992 CanLII 8599 para. 14. The applicant points out that the genuine issue for trial should be confined to those in respect of the matrimonial home, not a vesting order, a constructive or resulting trust or other issues not pleaded.

[14] At this stage, the respondent has not claimed a vesting order in his pleadings. Nor has he pleaded a trust claim in respect of the matrimonial home. A vesting order in this case is too remote a possibility to be considered a substantive right of the kind that would inhibit the sale of a jointly owned matrimonial home as contemplated in Silva.

The court distinguished the current case from Kereluk (a case where the sale was not allowed on an interim motion) partly because, unlike in Kereluk, there were no children involved in the current case. The court further concluded:

[18] In this case, given the fact that there are three proceedings outstanding, and that none of them is moving forward with any alacrity, I find that in the context of the whole proceedings between the parties partition and sale of the matrimonial home is appropriate. As noted above, trial is far from imminent. In the words of Finlayson JA in Silva (para. 24) “I can think of no reason why the husband should hold the house hostage until his claim has been adjudicated. …I do not think that his concern about collecting a subsequent award, in the circumstances of the case, amounts to prejudice within the meaning of the case law.”

[19] I find the partition and sale will not interfere with any substantive right of the husband in the family law proceeding.

Issue Two: Oppression, Malice, or Vexation

The second issue centres on whether the husband can establish that the wife’s conduct in seeking an order is oppressive, malicious, or vexatious. The husband's claims that removing him from the matrimonial home after years of occupancy amounts to vexation. The court examines relevant cases, including Marchese v. Marchese, to determine that the wife's motion is not vexatious, oppressive, or malicious:

[21] The vexatious conduct must relate to the issue of the sale of the matrimonial home; it is not whether there is vexatious conduct in general that is to be considered: Marchese v. Marchese, 2017 ONSC 6815, at para. 18, aff’d 2019 ONCA 116.

[22] The wife’s uncontradicted evidence is that she has been asking for the matrimonial home to be sold since 2019. It is not a new request.

[23] In my view, the fact that the funds will be paid into court until further order of the court in accordance with Rule 66.03 of the Rules of Civil Procedure does not render the bringing of this motion vexatious, oppressive or malicious. The husband states that there is no pecuniary gain for the wife; I would say there is no immediate pecuniary gain. Certainly, the sale of the property moves the parties closer to being able to conclude their dealings with one another. It allows a motion to be brought to disburse some of the funds if needed by the parties as is suggested in the wife’s materials. The wife is not interfering with an entitlement of the husband – he is not entitled to occupy their jointly owned property indefinitely, with no occupation rent being paid to the wife. Moving this matter forward can hardly be said to be vexatious, oppressive or malicious.


Resolving property disputes within the context of family law is a multifaceted process. The Sparkman v. Sparkman case highlights the challenges and considerations that arise when dealing with the sale of a jointly owned matrimonial home. The court's thorough analysis ultimately led to a decision in favour of the wife's motion for sale.


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