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Can a matrimonial home be sold during COVID-19?

By | - June 17, 2020

Steve Benmor is a recognized divorce lawyer, family mediator, arbitrator, speaker, writer and educator. Mr. Benmor has worked as lead counsel in many divorce trials, held many leadership positions in the legal community and has been regularly interviewed on television, radio and in newspapers as an expert in Family Law.

Generally speaking, a home that is occupied by two married spouses during marriage and until their day of separation is considered a “matrimonial home”. The reason this distinction is important is because any property that fits that definition is considered a “matrimonial home” for the purposes of legal protection. This applies irrespective of whether the home is in one spouse’s name or in both their names. This can apply to more than one property such as the home in the city, the cottage up north, the ski chalet or the Florida condo. That is, there can be multiple matrimonial homes that are included in the legal protection afforded under Ontario family law.

Once a property is determined to be a matrimonial home, for it to be sold or even refinanced, both spouses must consent in writing.

In some parts of Ontario, the real estate market has been negatively affected by the global pandemic. In many parts of Ontario, there have been areas where the value of the homes has been reduced due to market forces.  As a result, divorcing spouses may disagree on whether it is the right time to sell their home.  Where the spouses agree, they will likely appoint a realtor to list and sell her home and follow the realtor’s advice on how to manage the sale process during this global pandemic. This may include virtual tours of the home or tours wearing protective gear such as masks, screens, gloves and shoe covers. Provided that the spouses and realtor work together, it is indeed possible to list and sell the matrimonial home during COVID-19.

However, there have been incidents of spouses not agreeing on the listing and sale of the matrimonial home during the global pandemic. In those situations, unless it is an emergency to sell, the Ontario courts have refused to consider such motions for sale of the matrimonial home. This then leaves the spouses who do not agree to resolve this through lawyers, or to submit the issue to mediation or arbitration. In some cases, despite their differences, the parties have been able to arrive at terms of sale which could include a buyout by one spouse from the other, a private sale or a later sale.

However, for those spouses that do not agree on whether the matrimonial home should be sold, a spouse who wants to have the home sold will need to wait until the Ontario courts resume normal operations and then bring a motion to compel the sale of the matrimonial home.

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