Can a Court Force the Sale of the Family Home Post-Separation in BC?
For many separating couples in BC, the family home is the largest shared asset. Whether to keep or sell the family home can also be one of the most emotionally difficult issues to resolve after separation. One spouse may want to sell the home, divide the equity, move forward financially and purchase a new property, while the other may want to remain in their same neighbourhood, close to friends, family, and their child’s school. What happens if the parties cannot agree?
What Happens If Your Ex-Spouse Refuses to Sell the House?
If the parties are willing to negotiate about whether or not to sell the home, there are a variety of dispute resolution options available to them:
- negotiating a buyout of the other spouse’s share
- mediation or the collaborative family law process
However, separating spouses are not always able to agree on family property division issues, including what to do with the family home.
Applying to Court for an Order for Sale
When spouses cannot agree on what to do with the family home, there may be no alternative other than to commence a proceeding and ask the court to order the sale of the family home. This is a powerful remedy, however, it does not happen automatically. Before bringing on an application to sell the home, a Supreme Court family claim will have been filed and the parties will generally have attended a Judicial Case Conference.
When Can a Court Order the Sale of the Family Home?
Rule 15-8(1) of the Supreme Court Family Rules provides that the Court may order the sale of property in a family law case if it appears “necessary or expedient” that the property be sold.
Factors Courts Consider
When hearing an application for sale of the family home, a Judge will look at several factors in determining whether the sale would be “necessary or expedient”. These factors were summarized in Halan-Harris v. Blain, 2023 BCSC 681, relying on the Court of Appeal decision inKapoor v. Makkar, 2020 BCCA 223.
- If a sale is not necessary then it should be advantageous to both parties;
- Any doubt about the justice of an order for sale should be resolved in favour of the status quo;
- Where children are involved, the court should consider their need for stability and easy access to their school and friends, especially in the period immediately following separation;
- The availability and affordability of alternative accommodation;
- The emotional condition of each party, especially the party who has primary parenting;
- External economic factors such as a declining market or the wasting of the asset;
- The capacity of the parties to maintain the asset; and
- The inability of one party to buy out the other’s interest, and the inevitability of the ultimate sale of the property.
Given the above, the Court can hear evidence on a variety of subjects when determining whether to sell the family home, ranging from the parties’ finances to the needs of the children, as well as evidence about the housing market in general or the value of the home in particular. The broad nature of these applications, particularly if they are contested, can make the process complicated and the outcome unpredictable.
Who Must Prove a Sale Is Necessary or Expedient?
The spouse asking the court to order the sale must prove it is justified on the basis that the sale is necessary or expedient, with reference to the factors listed above. Unlike in criminal law, the applicant does not need to demonstrate the sale is necessary or expedient beyond a reasonable doubt, just that it is necessary or expedient on a balance of probabilities. The application respondent is entitled to receive notice of the application and can present their own evidence to the Court as to why the home should or should not be sold.
Final Thoughts
Disputes about the family home are common during separation. While one spouse cannot always force a sale, British Columbia courts have the authority to order the sale of a home when it is necessary or fair in the circumstances.
How to deal with the family home post-separation can be factually and legally complicated. Once an order for sale of the home is granted, the parties still need to consider, among other things, how to select the realtor who will sell the home, whether any repairs are needed prior to sale and who will pay for them, what offer price the parties will accept, and how the net sale proceeds will be divided. If you are facing a disagreement about what to do with the family home after separation, obtaining legal advice can help you understand your rights and options.
Learn more about separation and family property issues.
Disclaimer: This content is provided solely for informational purposes and is not intended for use in any legal proceeding. You should consult a qualified lawyer for advice tailored to your specific circumstances.
