Partition and Sale of Home

Fernandes v. Darrigo | 2018 ONSC 1039 | Ontario Superior Court of Justice (Divisional Court)

Division of family property -- Order for division of property -- Order for partition and sale

Mother and parties’ youngest child, who suffered from autism spectrum disorder, anxiety and depression, continued living in jointly-owned matrimonial home for several years after separation -- In answer to divorce proceeding commenced by father, mother sought orders for exclusive possession and vesting of home -- Father alleged mother had been negligent in regard to property and brought motion for order for sale of home before trial -- Motions judge gave little weight to mother’s own and non-expert evidence concerning potentially negative impact of sale and move on child -- Judge determined home should be listed for sale 14 days after father provided updated financial statement and answers to undertakings, and that first reasonable offer should be accepted -- Mother appealed and was permitted to introduce fresh evidence in form of expert report from psychologist to effect move would be highly stressful for child and cause increase in anxiety and depression that had only recently improved -- Appeal allowed -- Non-expert evidence submitted by mother below and expert evidence submitted by mother on appeal constituted cohesive foundation for conclusion it would not be in best interests of child to order sale of matrimonial home at this stage -- There was reasonable prospect doing so would prejudice health of child -- That prejudice could not be undone -- Order below had effect of defeating mother’s claims to possession and vesting, both relevant to best interests of child, before trial -- Motions judge had made palpable and overriding error requiring order to be set aside.