When will the court order partition and sale of the home?

In my view, notwithstanding the position of the husband that it is not financially possible to avoid selling the home, the law is quite clear that it would be an error in law to order partition and sale at this stage for the three reasons set out by this court in Walters v. Walters[1]: 1. there is genuine issue for trial concerning exclusive possession of the home; 2. continued ownership of the home for the benefit or support of the children is an issue for trial by the mother who is the custodial parent; 3. although the finances of the parties are strained, there is no evidence that the parties are is dire need of the funds that would be generated from a sale and there is no foreclosure or power of sale is imminent.

As stated by Potts J. in Fraser v. Fraser[2]: The court ought not to order the sale of a jointly owned matrimonial home while one joint tenant has exclusive possession of the home and while the order for sale would defeat claims one joint tenant intends to put forth at trial. In this case the claims that would be defeated are the wife’s claims for exclusive possession of the matrimonial home and support for herself and the youngest child of the marriage.