Do Both Spouses Have Equal Rights to the Matrimonial Home in Ontario?
Yes. Both spouses have an equal right to possession of a matrimonial home, whoever holds title. Moving out does not end this statutory right. That right is personal against the owner spouse when only one spouse has an interest, and it ends when you stop being spouses, for example on divorce, unless a separation agreement or court order provides otherwise.
Consent matters on a sale or mortgage. No spouse may dispose of or encumber an interest in a matrimonial home unless the other spouse joins in or consents, the other spouse has released their rights by separation agreement, a court authorizes it, or another property has been properly designated as the matrimonial home. A court can authorize a transaction if the other spouse cannot be found, is incapable of consenting, or is unreasonably withholding consent. There is an exception for a buyer or lender who acquired the interest for value, in good faith and without notice that the property was a matrimonial home.
A court may also order exclusive possession to one spouse, regardless of who owns the home. What applies to you depends on your facts, so it is worth speaking with a lawyer before you sell, mortgage or move out.
Key takeaways
- Both spouses have an equal right to possession of a matrimonial home, whoever holds title, and moving out does not end that right.
- When only one spouse has an interest in the home, the other spouse's right of possession ends when they stop being spouses unless a separation agreement or court order provides otherwise.
- Selling or mortgaging a matrimonial home generally needs the other spouse to join in or consent, or a release in a separation agreement, or court authorization.
- A court may authorize a transaction if the other spouse cannot be found, is incapable of consenting, or is unreasonably withholding consent.