What is the test for an application for partition or sale?

As I stated at paragraph 11 and 13 of the Lane v. Lane decision (2010 MBQB 165; [2010] M.J. No. 232), when considering an application for partition or sale, the court’s discretion is to be exercised in a judicial manner and governed by well-defined overriding principles. The starting place in the analysis is that, generally speaking, an applicant is entitled to an order for partition or sale. To defeat that prima facie entitlement, a respondent must show that, in the particular circumstances of his/her case, the order sought would be oppressive or vexatious or that the applicant did not come to court with clean hands. Neither personal inconvenience nor hardship is enough. The case law establishes as well that a judge who hears an application for partition or sale has a wide discretion to refuse or grant such equitable remedies. Here again, for me to find that the husband’s conduct in this case is sufficiently oppressive or vexatious to deprive him of his prima facie right to an order for sale, or that he does not come to court with clean hands, his conduct must be fairly egregious.