Can a Court Order the Matrimonial Home Sold in Ontario?

After separation, one spouse often wants the house sold so the money can be divided and everyone can move on. The other may want to stay, may not be able to afford a buyout, or may simply refuse. Without agreement, the question can end up in front of a judge.

This article explains in plain language when a court can order a home sold, what the Partition Act has to do with it, and how judges tend to approach the dispute. It is general information, not advice about your own home.

What counts as a matrimonial home

In Ontario, a matrimonial home is property in which a person has an interest and which the person and their spouse ordinarily occupied as their family residence at separation. That can include a house, condo or other dwelling, and you do not have to be the registered owner to have the home treated this way, as long as you have an interest in it.

The label matters because the matrimonial home is treated differently from other property when spouses divide what they own. For example, a spouse who brought a home into the marriage cannot deduct its marriage-date value if it is still the matrimonial home at separation. Gifts and inheritances are usually excluded from net family property, but that exclusion does not apply to a matrimonial home.

The Partition Act: a right to ask for a sale

When spouses own a home as joint tenants, one of them can ask the court to order it sold under the Partition Act. Joint tenants have a prima facie right to force a sale under s. 2 of that Act. Prima facie means the right is presumed unless the other side gives the court a good reason to refuse.

That puts the burden on the spouse who wants to keep the home. The party resisting sale has the onus to show it should not happen, and must show that the party seeking sale is acting in a malicious, vexatious or oppressive fashion. Simply preferring to stay, or being unhappy with the timing, is generally not the same thing.

How judges approach a refusal to sell

In one Court of Appeal decision, Inniss v. Blackett, the court upheld a sale order on the basis that the occupant could not or would not buy out the other owner. How this applies to your home depends on your situation, so it is worth confirming with a lawyer.

Which route is right can depend on who is on title and what else is being claimed. A lawyer can confirm which approach fits your situation.

Selling the home is not the same as dividing its value

An order that the home be sold deals with the property itself. How much each spouse ultimately receives is a separate question. Under the Family Law Act, the spouse with the lesser net family property is entitled to one-half the difference between the two net family properties. Net family property is the value of all property a spouse owns on the valuation date, except excluded property, less debts and liabilities.

• The home's value is usually one large piece of each spouse's calculation.
• How sale proceeds are handled after a sale depends on your agreement or order, so it is worth confirming the details with a lawyer.

What to do next

• Get a copy of the title or deed to confirm how the home is owned.
• Gather mortgage statements, property tax bills and recent valuations or appraisals.
• Work out whether you can realistically afford to buy the other spouse out.
• Consider proposing a sale date or buyout timeline in writing before going to court.
• Speak with a family lawyer before listing the home or changing the locks, since either step can cause problems.

Court is usually the last step. An agreed sale, with a clear plan for the proceeds, is often faster and cheaper than a contested application.

Frequently asked questions