Court Rejects COVID 19 as justification to cancel sale of Matrimonial Home

In the recent decision of Burrell v. Burrell, 2020 ONSC 3269 (CanLII) the Hon. Justice Bondy of the Ontario Superior Court dealt with a Wife’s urgent motion to sell a matrimonial home. The decision is a good reminder that contractual obligations must still be fulfilled during COVID-19, and that the pandemic is not an excuse to gain advantage in family litigation.

In this case, an Order had been made for the sale of the matrimonial home in January 2020. Then, in February 2020, the parties signed an agreement of purchase and sale (“Agreement”) for the sale of the matrimonial home. In the Agreement, the closing was scheduled for April 2020, but the closing was extended to May 2020 at the Husband’s request because the Agreement permitted him to exercise that option. Once that option had been exhausted, the Husband sought a further delay in the closing of the sale. He then refused to cooperate to permit the sale to close.

The Wife brought a motion and sought:

  1. an order for the sale of the home;
  2. an order allowing her to sign any necessary documents on the Husband’s behalf;
  3. an order for the Husband to vacate the home; and
  4. an order allowing the Wife to retrieve personal possessions from the matrimonial home prior to closing and in accordance with earlier court orders.

The Wife argued that the Husband’s failure to cooperate with the closing would result in unnecessary and expensive litigation vis-a-vis the purchasers in the Agreement. She also cited other grounds. The Husband responded that the motion was not urgent because there was no actual lawsuit. Moreover, the fear of a lawsuit should not be more important than human lives. The Husband sought to delay the sale until the pandemic restrictions had been lifted. He also opposed the motion because the Wife was in so rush to give him a settlement and refused to give him more access to their children.

The Hon. Justice Bondy was not impressed by the Husband’s position. Firstly, because of COVID-19 protocols, the Court dealt with the issue of urgency – it confirmed the Mother’s position, and agreed that the motion was urgent.

Justice Bondy then dealt with the issues. The Court found the Husband’s evidence inconsistent. Although the pandemic was difficult for everyone, Justice Bondy found that the Husband lacked meaningful insight into the consequences of his decisions, or more worryingly, did not care at all for the consequences.

Justice Bondy was also compelled by the following factors.

  1. The Husband voluntarily signed the Agreement, absent of any duress, and was therefore legally bound by his decision to sell the home.
  1. The Agreement involved four people, and the consensus of all four parties was required to amend its terms. The Husband could not unilaterally amend the closing date.
  1. The purchasers of the home could be prejudiced by a delay because they might not have a place to live by an indefinitely “canceled” closing.
  1. The Wife, who was the primary caregiver of the children, would also be prejudiced. Notably, any financial hardship to her would be felt by the Children.
  1. There was no evidence that any relocation by the Husband would be jeopardized by COVID 19 – the same could be accomplished within provincial guidelines.
  1. There was no evidence or explanation from the Husband that explained how the sale would put the Children at risk.
  1. The Husband had stated on Facebook that the pandemic was a hoax. This undermined his position.
  1. Given that the Husband explicitly connected the issue of sale to the matters of equalization and his unhappiness with supervised access, it is evident that this was a delay tactic to gain concessions from the Wife.
  1. COVID-19 was just a convenient way for the Husband to frustrate court orders, and create an artificial and unnecessary emergency.
  1. It was impractical to delay the closing until after the pandemic because nobody could know how long the pandemic would last. It would be unfair to tie up the Wife’s equity indefinitely.

Ultimately, if litigation were to be instituted by the third-party purchasers, the Husband and Wife would have little chance of success. Most worryingly, the costs and damages would have a significant impact on the Wife’s ability to provide for the children.

As a result, the Court ordered the Husband to vacate the home within two days and stated that any difficulty experienced by the Husband as a result of such short notice was a product of his own decision making.

This case is useful because it provides a good example of the daft positions that people can take without family lawyers. The Husband was unrepresented at the motion. Perhaps, he would have been more successful had he not taken such unconvincing positions. He did not help himself when he explicitly signaled to the Court that he opposed a sale because he wanted concessions on equalization and access. He had already entered into the Agreement. Worse, the Agreement involved innocent third parties. The Husband should have obtained concessions from the Wife before entering into the Agreement – not at a motion after he had already signed the Agreement.

But lo, that is not what occurred. Instead, because of his poor timing, the Husband appeared unreasonable, lost his motion, and subsequently had $4,310.95 in costs awarded against him.

If you have a motion involving the sale of a home, and are facing a reluctant opposing side, or are yourself the reluctant party, contact one of our lawyers at NuriLaw for assistance. We can help. 416-323-5092.