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Matrimonial homes and right of first refusal

Wednesday, June 17, 2020 @ 8:48 AM | By Gary Joseph


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Gary Joseph
Once again, the issue of the disposition of a matrimonial home has found its way to the Ontario Court of Appeal in the case of Barry v. Barry 2020 ONCA 321. I find this surprising in that the same court in 1992 clearly articulated its view on a very similar if not identical issue in Martin v. Martin 8 O.R. (3d) 41.

In Barry, following a four-day trial before the Superior Court of Justice, the trial judge granted to the respondent the right to purchase the matrimonial home within 30 days from the release of the decision after obtaining a fair market value assessment. The applicant wife wanted the home sold and the proceeds divided. The wife appealed arguing that the trial judge had made a reviewable error of law for which the standard of review is correctness and the Appeal Court agreed.

Citing Martin v. Martin, the Appeal Court noted that a right of first refusal is a substantive right that has economic value. “It distorts the market for the sale of the matrimonial home by eliminating the need to compete against any other prospective purchaser, thus reducing the amount the joint owning spouse realizes on the sale. In the absence of consent, the right of first refusal should not have been granted in this case.” The respondent, if he wanted the home, was ordered to compete with other potential purchasers.

An interesting side note to this case is an argument that the respondent made challenging the jurisdiction of the Ontario Court of Appeal to hear the appeal. He took the position that the appeal lay to the Divisional Court. Perhaps he was relying upon s. 7 of the Partition Act which does indeed provide that appeals from that Act lie to the Divisional Court. The Court of Appeal rejected this submission citing s. 6(1)(b) of the Courts of Justice Act allowing appeals to the Ontario Court of Appeal from a final order of the judge of the Superior Court.

In a footnote the court notes that Part I of the Family Law Act does not have an appeal provision captured by the deeming provisions of s. 21.9.1 of the Courts of Justice Act, which directs certain final appeals from the decision of the family court to the Divisional Court. Does everybody understand that? My goodness, isn’t it time that we simplified the appeal rules and made them more user friendly?  

Also, and by the way, when will we have a provincewide “unified” family court? Haven’t we learned from the COVID-19 crisis that we need to speak up forcefully to make changes to our court system so that it is immediately more consumer friendly? Making the appeal process more friendly would start with making the rules for appeals easier to understand.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP, family law practitioners.

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