Registering a Matrimonial Home Designation in Ontario

If you own a home in Ontario, you may have heard that you can register something called a matrimonial home designation against it. It sounds like a formality, but it can change what a buyer, a lender and your spouse see on title.

This article explains what a designation is, what it does and does not do, when people use it, and how it ends. It is general information, not advice about your own property, and your facts can change the answer.

What a matrimonial home is, with or without a designation

A matrimonial home is any property in which a spouse has an interest and that is or was ordinarily occupied by the spouses as their family residence. If you have separated, that is judged at the time of separation. A couple can have more than one matrimonial home.

Both spouses have an equal right to possession of a matrimonial home, whether or not their name is on title. So a property can be a matrimonial home without anything being registered. Whether a cottage or rental qualifies depends on the facts, mainly whether it was ordinarily occupied as a family residence.

Owning shares in a co-operative or corporation that give a right to occupy a housing unit counts as an interest in that unit for these purposes. Unmarried partners are not covered by these rules, because the matrimonial home provisions apply only to spouses as the Act defines them.

What a designation is and how it is registered

One or both spouses may designate a property owned by one or both of them as a matrimonial home. The designation may include contiguous property and may be registered in the proper land registry office.

The registration does not create the spouses' rights, which already exist under the Act. Its effect depends on who made it: a designation registered by both spouses changes the status of other properties, while one made by only one spouse gives notice of a potential spousal interest.

Ontario's land registration bulletin explains that a deed or mortgage registered under the Family Law Act must include one of the prescribed Family Law Act statements. Examples are that the property is not designated as a matrimonial home, or that the person consenting is the transferor's spouse.

One spouse or both: why the difference matters

When a designation made by both spouses is registered, any other property that is a matrimonial home under the general definition but was not designated by both spouses stops being a matrimonial home. That can be useful when a couple wants one property to be the only one with these protections.

A designation by only one spouse works differently. Registering it does not release other properties, which remain matrimonial homes if they meet the general definition. The land registration bulletin says a single designation only gives notice of a potential spousal interest.

Selling or mortgaging, and when a designation ends

A spouse may not sell or mortgage an interest in a matrimonial home unless one of these applies:

• The other spouse joins in or consents.
• The other spouse released their rights in a separation agreement.
• A court order authorizes it.
• A different property has been designated as the matrimonial home by both spouses and that designation is registered.

If a sale or mortgage breaks this rule, a court can set it aside. It cannot do so if the buyer or lender acquired the interest for value, in good faith and without notice that the property was a matrimonial home. A court can also authorize a sale or mortgage where the other spouse cannot be found, cannot consent or unreasonably refuses to consent.

A designation is cancelled, and the property stops being a matrimonial home, when any of these occurs:

• A proper cancellation is registered.
• A divorce or nullity judgment is made.
• A court orders it under s. 23(e).
• A spouse's death is proven.

A marriage contract term that tries to limit a spouse's matrimonial home rights is unenforceable.

What to do next

A designation is not a substitute for working out how the home will be treated on separation. Even if the home was owned before the marriage, its full value is generally shared in the property calculation, because the date-of-marriage deduction is not allowed for a matrimonial home.

• Find your title documents and check whether any designation is already registered.
• List every property you and your spouse have lived in as a family, including a cottage.
• Decide whether one or both spouses will sign any designation, since the effect differs.
• Before selling, mortgaging or refinancing, confirm in writing whether your spouse must consent.
• If you are separating, get advice before signing a release or cancellation.

A lawyer can look at your title and your situation and tell you whether a designation makes sense and how to register or cancel one.

Frequently asked questions