How to Apply for Sole Conduct of Sale of the Family Home After Separation in BC

What happens when the parties to a family law proceeding separate? How do they deal with their former family home? When some parties try selling a former family home jointly, but are unable to do so because of a lack of cooperation or delay, what can the other party do? This blog explores how a party to a family law proceeding can apply for sole conduct of the sale of a former family home after separation in BC.

Sales by the Court

In some cases after separation, the spouses may want their home listed for sale for emotional or financial reasons, but when the parties are unable to work together jointly in selling their home, the Court may intervene under Rule 15-8 of the Supreme Court Family Rules.

Court may order sale

(1)    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.

Conduct of sale

(2)    If an order is made directing property to be sold, the court may permit any person having the conduct of the sale to sell the property in the manner the person considers appropriate or as the court directs.

Directions for sale

(3)    The court may give directions for the purpose of effecting a sale, including directions

(a)appointing the person who is to have conduct of the sale,

(b) fixing the manner of sale, whether by contract conditional on the approval of the court, private negotiation, public auction, sheriff's sale, tender or some other manner,

(c) fixing a reserve or minimum price,

(d) defining the rights of a person to bid, make offers or meet bids,

(e) requiring payment of the purchase price into court or to trustees or to other persons,

(f) settling the particulars or conditions of sale,

(g) obtaining evidence of the value of the property,

(h) fixing the remuneration to be paid to the person having conduct of the sale and any commission, costs or expenses resulting from the sale,

(i) that any conveyance or other document necessary to complete the sale be executed on behalf of any person by a person designated by the court, and

(j) authorizing a person to enter on any land or building.

Application for directions

(4)    A person having conduct of a sale may apply to the court for further directions.

Certificate of sale

(5)    The result of a sale by order of the court must be certified in Form F70 by the person having conduct of the sale and that certificate must be filed promptly after completion of the sale.

Vesting order

(6)    The person having conduct of the sale may apply to the court for a vesting order in favour of a purchaser.

How Does the Court Determine When a Spouse Can Have Sole Conduct of the Sale of the Family Home?

In the case of McLachlan v. McLachlan, 2013 BCSC 1733 the court stated:

[65] The claimant relies on the decision of the Court of Appeal in Selkirk v Kohler, 2011 BCCA 43, in seeking sole conduct of sale. In that case, the parties had been granted an order for joint conduct of sale of the Matrimonial Home. The husband was causing problems with the sale by continuing to live in the basement. The court granted the wife an order for sole conduct of sale. The husband’s appeal was refused.

[66] I have also considered other recent decisions of the court where sole conduct of sale has been ordered. In French v French, 2013 BCSC 837 at para. 89, the court granted the wife sole conduct of sale because of the husband’s unwillingness to facilitate the sale. In Polich v Polich, 2011 BCSC 949 at para. 10, the court granted the husband sole conduct of sale, because the parties demonstrated an inability to agree on routine aspects of the sale and the wife had taken what the court regarded as a “less than sensible attitude” toward resolving the issue.

[67] There is no singular test for granting sole conduct of sale. Rather, the court considers all factors relevant to affecting a sale ordered, to determine whether granting sole conduct of sale is necessary or expedient. The parties’ inability to cooperate or agree with one another may provide appropriate grounds.

What Happens If the Title of the Family Property is Only in One Spouse’s Name?

In the case of Etemadi v Maali, 2020 BCSC 1908, it was stated that the Courts may order the sale of a property even if the spouse’s name is not on the property. In this case, the wife sought an interim distribution of funds to pay for the costs of their high conflict family law litigation. The wife said there were many properties to be divided while the husband did not agree. The Court found that the wife was at a distinct disadvantage in the litigation, being against well-funded adversaries, and if she were to have a chance of success, either at trial or through negotiation of a reasonable settlement, she required energetic and capable legal representation, and recognized that it would cost money. The court ordered that the husband pay an interim distribution to the wife of $250,000 and if he did not advance the funds, that a property in his name would be sold with the wife having conduct of the sale of the home.  

What Happens If the Uncooperative Spouse Refuses To Sign the Necessary Documents?

In the case of Ishwarlall v Ishwarlall, 2023 BCSC 310, the court granted sole conduct of sale of a joint property to one of the parties and directed the Registrar to sign any documents necessary to otherwise list or complete the sale, and dispensed with any need or legal requirement for the other party’s signature to effect a listing or sale.

Dealing with property matters in family law proceedings can be daunting. If you have questions about your family law case, reach out for a consult.