I am often asked if the Family Residence can be sold before a trial. Rule 15-8(1) of the B.C. Supreme Court Family Rules states:
If in a family law case it appears necessary or expedient that property be sold, the court may order the sale and may order a person in possession of the property or in receipt of the rents, profits or income from it to join in the sale and transfer of the property and deliver up the possession or receipt to the purchaser or person designated by the court.
The question therefore is whether it is “necessary or expedient” to sell the family residence before trial.
In Bodo v. Bodo, (1990) 25 R.F.L. (3d) 295 (B.C.S.C.) Justice Huddart states at the end of paragraph 26 that “Any doubts about the justice of an order for sale on an interim application should be resolved in favour of the status quo.” She also outlines factors to be considered to determine whether a sale is necessary and expedient. At paragraph 28 she states:
“Given the wide variety of factual patterns in family law actions it would be singularly foolish of me to attempt a definitive listing of factors that might be relevant to the determination as to whether a sale is “necessary and expedient”. However, those factors that have been considered in determining whether a sale should be ordered at trial will always be relevant. They include:
- Children’s need for stability and easy access to their school and friends, particularly in the period immediately following the separation of their parents;
- The availability (including affordability) of alternative accommodation for each spouse and his or her dependents;
- The emotional condition of the spouses, especially the parenting spouse;
- External economic factors (e.g. a declining market);
- Wasting of the asset; and
- The capacity of the parties to maintain the asset.”
She also outlines at paragraph 37 that “Potential prejudice to a party must always be a factor in determining an issue on an interim basis that irrevocably alters the status quo.”
The court will often order the sale of the Family Residence pending trial if doing so would encourage the parties to settle thereby avoiding the necessity of having a trial.
