Can One Joint Owner Sell or Mortgage the Home Alone in Ontario?

If you share ownership of a home or an account, it is natural to worry about what the other person might do without telling you. The answer depends on how title is held, whether you are spouses, and whether the property is a matrimonial home.

This article explains the main protections and risks in Ontario, and how one owner's actions can affect survivorship. Exact outcomes depend on the facts, so it is worth confirming with a lawyer.

Start with how title is held

Joint tenants take by survivorship, while tenants in common do not. Land in two or more names is presumed to be held as tenants in common unless the document shows a joint tenancy. For spouses and unmarried partners living together in a conjugal relationship, the same presumption applies.

Ontario land registry records, including the parcel register, are searched through OnLand, where anyone can self-search for a fee or order certified copies. How a particular deed reads and what it means for you depends on its wording, so it is worth confirming with a lawyer.

The matrimonial home protection

A spouse may not dispose of or encumber an interest in a matrimonial home, for example by selling or mortgaging it, unless one of four things applies.

• The other spouse joins in or consents.
• A separation agreement releases the right.
• A court order authorizes it.
• A valid designation of another home applies.

A matrimonial home is property ordinarily occupied by the spouses as their family residence, or that was at separation. Under the Family Law Act, spouse for property purposes means two people who are married to each other. Unmarried partners should not assume this protection covers them, and should get advice.

There is also a rule for death. If a spouse dies owning an interest in a matrimonial home as a joint tenant with a third person, such as a child, and not with the other spouse, the joint tenancy is deemed severed immediately before death. The deceased's share then goes into the estate instead of to the third person by survivorship.

A surviving spouse who has no interest in the matrimonial home but lives in it may stay there rent free against the estate for 60 days after the death.

What one owner can do to survivorship

A person may convey property to themselves, and owners may convey property vested in them to one or more of themselves. These are the statutory routes a joint tenant can use to sever by deed. Once severed, the share no longer passes by survivorship. The conveyance is liable to be set aside if a fiduciary relationship or another factor prevents it.

An owner can also convey property to themselves jointly with another person, which is how a child or partner is added to title as a joint owner. Giving capital property as a gift is treated as a sale at fair market value on the day you give it, and any capital gain must be reported for that year. The automatic rollover applies to gifts to a spouse or common-law partner, not to children, except qualifying farm or fishing property.

Any joint tenant or tenant in common may also be compelled to make or suffer partition or sale, and any interested person can apply to court. So one owner can start a court process even without the other's agreement.

How debts, writs or bankruptcy affect a joint tenancy turns on specific facts. A writ of execution filed under a different name from the registered owner has no effect. Ask a lawyer rather than assuming.

Joint bank accounts are different

Any named holder of a joint account can withdraw at any time. If one holder has financial problems or goes bankrupt, creditors could make claims on the money. Between spouses, money on deposit in both names is deemed held as joint tenants.

An adult child added to a parent's account without paying for it is presumed to hold it in trust for the parent, and on death for the estate. The child bears the onus of showing a gift was intended. The presumption of a gift was confined to minor children. Courts may look at the wording of bank documents, who controlled and used the funds, any power of attorney, and the tax treatment of the account. Heirs may challenge the survivor, who may need to show the deceased intended the funds as a gift.

Survivorship rights in a joint account vest when the account is opened, so the gift is made during life, and what is gifted is the survivor's interest in the balance at the time of death.

What to do next

• Order a parcel register copy through OnLand, and ask a lawyer to help you confirm how title is held.
• Work out whether the property is a matrimonial home.
• If you fear a sale or mortgage, ask a lawyer about your options before anything is signed.
• Ask your bank how it handles joint account withdrawals and what happens on death.
• Keep records of who paid for the property and who used the funds.

Frequently asked questions