Case: Burns v Burns, 2023 ABKB 174

For many separating couples, the family home is both their largest asset and their greatest source of conflict. One spouse may wish to remain in the home, while the other wants to sell it and access their share of the equity. Meanwhile, both parties may continue to be responsible for mortgage payments, taxes, insurance, and maintenance costs.

So, what happens when one party wants to sell the home and the other refuses?

The Alberta Court of King's Bench considered this issue in Burns v Burns, confirming that the Court has the authority to order the sale of a family home before the parties have finalized their divorce or property division.

The Facts

The parties were married for approximately nine years and had two children together.

Following the breakdown of the marriage, allegations of family violence resulted in an Emergency Protection Order, which was later replaced by a Mutual Restraining Order. The wife remained in possession of the family home.

The parties were unable to resolve several outstanding issues, including parenting, child support, spousal support, and the division of family property.

An earlier court order gave each party the opportunity to refinance the family home and buy out the other's interest. The order provided that if neither party could obtain financing, the property would be listed for sale.

Neither spouse was able to refinance the mortgage, but they still could not agree on whether the home should be sold.

The Application

The wife applied to the Court for an order directing that the family home be listed for sale and establishing the terms of the sale.

The Court's Analysis

The Court confirmed that there is no automatic rule requiring the sale—or preservation—of the family home during a divorce. Instead, the Court exercises its discretion by balancing the advantages and disadvantages of an immediate sale in light of the specific circumstances of each case.

Factors that may weigh against a sale

The Court identified several considerations that may justify delaying a sale, including:

significant financial issues remain unresolved;
one party has a realistic ability to refinance the property and buy out the other spouse's interest; and
there is no pressing financial need to sell the home.

Factors that may support a sale

Conversely, a sale may be appropriate where:

there is urgency, such as the risk of foreclosure or financial loss;
the existing arrangement is no longer financially sustainable;
neither party has a realistic ability to refinance and assume sole responsibility for the mortgage; and
selling the property would simplify the remaining financial issues and assist the parties in resolving their dispute.

Additional considerations

The Court also recognized that several practical considerations may influence the decision, including:

the length of time since separation;
the complexity of the litigation;
occupation rent claims;
concerns regarding the preservation, maintenance, or dissipation of family property;
any previous agreement between the parties regarding the sale of the home; and
the best interests of the children, including whether remaining in the home provides important stability or whether the property has been specially modified to accommodate a child's needs.

The Decision

The Court ordered that the family home be sold.

In reaching its decision, the Court emphasized several important factors:

the mortgage was in arrears and foreclosure proceedings were a real concern;
both parties were experiencing financial hardship;
the secured debt against the property had reached its limit;
the home contained significant equity that could be used to meet the parties' financial obligations;
neither party could qualify to refinance the mortgage independently; and
both parties had already been given a reasonable opportunity to obtain financing but had been unsuccessful.

Taken together, these factors demonstrated that maintaining the status quo was neither practical nor financially responsible.

Key Takeaways

This decision confirms that separating spouses are not necessarily required to wait until trial before dealing with the family home.

Where maintaining the property has become financially burdensome or neither party can realistically keep it, the Court may order an earlier sale, even without both parties' consent.

However, the Court will generally ensure that each party has had a reasonable opportunity to refinance or purchase the other's interest before directing that the property be sold.

What Should You Do If This Situation Applies to You?

If you are struggling to maintain the family home after separation, or your former spouse refuses to cooperate with a sale despite mounting financial pressures, you may have legal options.

An early application to sell the property may reduce financial strain, preserve the equity in the home, and help move the overall property division forward.

Every case is different, and whether a sale is appropriate will depend on the financial circumstances of the parties, the needs of any children, and the overall progress of the litigation.

Final Thoughts

Disagreements over the family home often become one of the most expensive and emotionally difficult aspects of a separation. Burns v Burns demonstrates that Alberta courts take a practical approach and will order the sale of a home where doing so is fair, financially sensible, and helps move the litigation toward resolution.

If you have questions about selling the family home during a divorce or property dispute, contact Stokes Law LLP to discuss your options with an experienced family lawyer.

Should the Family Home Be Sold During a Divorce?