Show Me The Money: Forced Sale Of Home
Author: Vancouver Family Lawyer Marcus M. Sixta
Who will get the family home is typically one of the most contentious issues to be determined when spouses separate and property is being divided. The same is for common law couples, the property must be divided equally. Unfortunately, it is not always possible for one of the spouses to retain the home in which the family resides. This is often because the spouse keeping the family property must be able to pay the other spouse any equalization payment owing and also qualify to take over the mortgage and any lines of credit associated with the property.
Sometimes neither spouse can keep the family home because they cannot qualify for the mortgage on their own and they may not be able to find a cosigner. Also, one spouse may need to pay the other out if they keep the home because keeping the family property means that they will have more of the total family assets and property. When spouses separate, all assets and debts need to be identified and valued to determine who will get what. If one spouse keeps the family home they may need to equalize the property between them by paying the difference to the other spouse. Because the family home may be worth a lot, the equalization payment may be too large for that spouse to make and they may be forced to sell it instead.
Sometimes one of the spouses will not agree to list the property for sale even if this must be done because neither spouse has the funds to keep it. This occurs for a number of reasons, such as not wanting to move, trying to delay matters, because the parties do not agree on the value of the property or because they do not agree who will have conduct or control of the sale. When this happens, an application to the Court is often required to force the sale of the home. The legislation in both British Columbia and Alberta allows the Court to force the property to be listed for sale, regardless of whether or not both parties consent. The lawyers at Crossroads Law have extensive experience with these types of applications to the Court.
When ordering the sale of a property there is no single test that the Court uses to determine if a sale is appropriate. The Court will consider all of the relevant factors affecting a sale. Some of these factors include whether or not either spouse will be able to qualify to take over the mortgage at a later date (once child and spousal support has been determined) or after other property has been valued and factored into the division. Sometimes it is premature to order the sale of the matrimonial homes and the Court will determine that an application can be made again at a later date if the matter is not settled. Generally speaking, if it is possible for one of the spouses to retain the home this is the preferred outcome and the Court will give both spouses a reasonable opportunity to qualify for financing or make the necessary arrangements.
If neither spouse can realistically retain the family property, and they cannot agree on the terms of sale, then the sale will be ordered by the Court. When a sale is ordered, the Court will consider whether sole conduct over the sale by one party is necessary or will expedite the sale. When spouses cannot cooperate or agree, sole conduct of the sale may be required. Factors such as who is residing in the property and whether one party has a history of being difficult to work with will influence the Court’s decision regarding who will have sole conduct of the sale. If a party has been dishonest or engaged in practices such as attempting to hide funds it is much less likely that they will be allowed to assume conduct of the sale.
The Court also has the power to set the listing price of the property and accept an offer (if one of the spouses will not consent to an offer that has been put forward by a third party).
The family law lawyers at Crossroads Law have experience dealing with the forced sale of the matrimonial homes and the division of property. Contact us to learn more legal information and to book a consult. We also deal with all child custody, alternative dispute resolutions, and other family law issues.