What is the test for a motion before trial for the sale of a jointly owned family farm?

Landry v. Landry, [1994] O.J. No. 1744 was a motion before trial for, among other things, the sale of a jointly owned operating family farm. Desmarais J. found, based on the farm cash flow, value, and existing indebtedness, that it would be “economically impossible” for the husband to borrow enough money to pay the required equalization to his wife. He therefore ordered the sale of the farm.

The parties both referred to Cudmore v. Cudmore, [1997] O.J. No 847, a trial decision in the divorce of a farm couple after a 30-year marriage. The parties owned the farm as joint tenants. The issues at trial included equalization and whether the farm should be sold. Granger J. held that the applicant was “simply seeking a realization of her rightful interest in the farm property.” He held that “in the circumstances of this case, I could not properly refuse such a sale.” However, the decision contains no reference at all to s. 11.

Hinz v. Hinz, [2000] O.J. No. 1327 (S.C.J.) was a motion for summary judgment authorizing the sale of the matrimonial home, which appears to have been a farm property. McDermid J. dismissed the motion on the grounds that the issues required a trial. In doing so, he said, at para. 7: “One must also not lose sight of the provisions of s. 11 of the Family Law Act, which ought not to be thwarted at an interim stage except in the clearest of cases, which in my opinion this is not.”