When The Sale Of The Matrimonial Home Is Certain, An Order For The Sale Will Not Be Stayed

Author(s): Melanie A. Larock

January 31, 2024

When The Sale Of The Matrimonial Home Is Certain, An Order For The Sale Will Not Be Stayed

Take a coffee break with Melanie Larock and read a weekly blog post about family law decisions released by the Court of Appeal for Ontario.

In the recent Court of Appeal decision in Jarvis v. Jarvis (2024 ONCA 32), the court emphasized the rigorous criteria for requesting a stay. The case involved the wife opposing the sale of the matrimonial home and seeking a delay while appealing an order that granted the husband exclusive possession and permission to sell without her consent. The court dismissed the motion for a stay.

The mother argued that the order harmed the children’s best interests and that securing rental accommodation in the neighborhood was challenging. However, the court found the appeal had weak merits, and the harm of moving wasn’t irreparable. The court acknowledged that the loss of the matrimonial home was inevitable, likely happening before the appeal or trial, requiring the mother to find alternative accommodation.

Considering the balance of convenience, the husband faced dire financial circumstances and needed access to the home’s equity to prevent foreclosure, which would harm both parties financially. The court noted evidence of suitable rental options in the area and sufficient time for the mother to make alternative living arrangements.

The core principle behind the three-part test for a stay is the interests of justice. If the sale of the matrimonial home is inevitable and the party in possession has reasonable time to arrange alternative accommodation, the interests of justice will not justify a stay.

About Melanie Larock

Melanie Larock is a family law litigator and a partner in Thomson Rogers’ Family Law group. Melanie’s focus is on all areas of family law with a particular emphasis on complex financial issues and high conflict parenting disputes. Melanie was trained by an illustrious litigator, and she is a self-proclaimed evidence law nerd.

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