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MARITAL OR FAMILY PROPERTY - Matrimonial or family home - Ownership - Third party claims

Thursday, September 09, 2021 @ 5:30 AM  

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Appeal by the husband and his father from an order that granted the wife an interim distribution of $250,000. The parties’ family property litigation was set for trial in February 2022. The husband maintained that the former family home, a townhouse, was 50 per cent beneficially owned by his father. The husband and his father signed a co-ownership agreement before purchasing the townhouse during the marriage. The application judge granted the wife’s application for an interim distribution and ordered that if the husband did not make the advance within 30 days, the townhouse was to be sold. He granted the wife sole conduct of the sale.

HELD: Appeal allowed in part. The application judge did not err in finding an interim distribution was appropriate and ordering the sale of the townhouse. He properly took into account how the interim distribution might be funded, including how it related to the father’s beneficial half-interest in the townhouse. The quantum reflected an appropriate level of caution. The application judge erred in granting the wife sole conduct of the sale. There was no evidence the parties could not co-operate under a court order regarding the sale of the townhouse. It would be unjust to deprive the father of participation in the sale. Dissenting reasons were provided.

Etemadi v. Maali, [2021] B.C.J. No. 1663, British Columbia Court of Appeal, D.C. Harris, G. Dickson and G.B. Butler JJ.A., August 3, 2021. Digest No. TLD-September62021005