My Ex Won't Sell the House: Court-Ordered Sale in a BC Separation

You have separated, you want the house sold, and your former spouse will not list it, will not sign, or keeps finding reasons to wait. Meanwhile the mortgage, taxes and insurance keep coming, and your share of the equity is tied up.

BC law does not leave you stuck. The Supreme Court can order a sale of the family home, before or at trial, and can give directions that work even if your ex will not cooperate. This post explains the main routes and what a strong application looks like.

Why one spouse cannot simply hold the house hostage

Under section 81 of the Family Law Act, each spouse has a right on separation to an undivided half interest in all family property as a tenant in common, unless an agreement or order says otherwise. That applies whether the home is in both names or only one. Your former spouse does not get a veto over what happens to an asset you are both entitled to share.

That said, a separated spouse cannot list and sell a home they do not hold title to, and a co-owner cannot sell the whole property over the other owner's objection without a court order. When negotiation stalls, the answer is usually an application to the Supreme Court of British Columbia. Only the Supreme Court deals with family property division in BC, so this is not something the Provincial Court can order.

For the bigger picture, including who stays in the home in the short term, see our post on the family home after separation. This article deals with the narrower problem: an ex who will not agree to sell.

Three legal routes to a court-ordered sale

1. As part of dividing family property

Section 97 of the Family Law Act lets the Supreme Court make any order needed to give effect to a property division. Section 97(2)(d) expressly allows an order requiring partition or sale of property, with payment out of the proceeds to one spouse or both in specified proportions or amounts. This is the usual route when the sale is part of a final order or settlement at trial.

2. A sale order under the Supreme Court Family Rules

Rule 15-8 of the Supreme Court Family Rules allows the court, in a family law case, to order property sold if it appears necessary or expedient. It is often used to ask for a sale before trial, for example where carrying costs are draining both spouses or the mortgage is falling into arrears. The rule also lets the court order the person in possession to join in the sale and hand over possession to the buyer.

3. The Partition of Property Act

The Partition of Property Act applies to co-owners of land generally, not only spouses. Section 2 allows joint tenants and tenants in common to be compelled to partition or sell. Under section 6, if a party interested to the extent of one half or more asks for a sale, the court must order it unless it sees good reason to the contrary. Section 8 gives the other owner a way to answer: they can undertake to buy the share of the person asking for the sale, and the court can order a valuation.

Which route fits depends on how title is held, where your family law case stands, and what else is in dispute. A lawyer will usually plead the options together rather than rely on one.

What the court can do if your ex refuses to cooperate

The most useful part of Rule 15-8 for a stuck separation is the power to give directions. The court can:

• Decide who has conduct of the sale, which often means one spouse runs the listing with a named realtor.
• Set the manner of sale, such as a private listing or a sale conditional on court approval.
• Fix a minimum price and set rules on accepting offers, so neither spouse can stall by rejecting everything.
• Require the purchase price to be paid into court or to trustees, often a lawyer's trust account, until the property division is resolved.
• Allow a designated person to sign documents for a spouse who refuses, and authorize entry for showings and appraisals.

So a spouse who will not sign the listing or the transfer cannot block a sale indefinitely once an order is in place.

When a sale may be delayed or refused

A sale order is not automatic, and the other spouse can push back. Common issues include:

• An exclusive occupation order. Under section 90 of the Family Law Act, the court can give one spouse exclusive occupation of the family residence for a set period, and can postpone the other spouse's right to apply for partition and sale while that order is in place.
• A credible buyout. If your ex can show financing and offers a fair price for your share, a judge may prefer that to a forced sale. Our guide to buying out a spouse's share of the house covers how those deals are structured.
• Children's needs. Stability, school timing and other housing options can affect timing.
• Unresolved claims to the home. If one spouse says part of the home is excluded property, for example from a gift or inheritance, the court will want the money protected until that is decided.

On the other side, if you are worried your ex will mortgage or transfer the home before you get to court, section 91 of the Family Law Act requires the court, on your application, to restrain the other spouse from disposing of property at issue unless they show your claim will not be harmed.

Building a strong application

These applications are usually decided on affidavit evidence. Before applying, gather:

• the title search, mortgage statements and any lines of credit secured on the home
• property tax, strata fee, insurance and utility costs, and who has been paying them
• a recent appraisal or broker's opinion of value
• your written proposals to sell or to buy out, and the responses
• a realistic plan for where each spouse and any children will live

It also helps to propose a sensible process: a named realtor, a listing price based on an appraisal, and net proceeds held in trust. A proposal that protects both spouses is easier to grant than one that looks tactical.

If you are short of funds to bring the case, section 89 of the Family Law Act lets the Supreme Court order an interim distribution of family property to fund family dispute resolution or the court process, if it would not harm the other spouse's interests.

After the order: completing the sale

Once a sale is ordered, the conveyancing still has to follow the order's terms on conduct of sale, approval of offers and where the proceeds go, and the lender and any other chargeholders must be paid out. Our real estate team can handle the sale and hold the proceeds in trust in line with the order.

Stuck in a standoff over the house? Get a plan before you apply

Our family lawyers can review how title is held, advise which route to a sale fits your situation, and prepare and argue the application, with our real estate lawyers available to complete the sale once it is ordered.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.