Matrimonial Home Owned by One Spouse in Ontario: Your Rights

Many couples buy a home with only one name on the title. If that is your situation, you may wonder whether you have any right to stay in the house, or whether your spouse can sell it without you.

In Ontario, the Family Law Act treats the family home differently from other property. This article explains how that works when one spouse owns the home, what changes at separation, and where the rules do not reach.

Equal right to live in the home, even off title

Both spouses have an equal right to possession of a matrimonial home, whether or not their name is on title. Being left off the deed does not mean you can be locked out while you are still married.

There is a limit. If only one spouse has an interest in the home, the other spouse's right of possession is personal as against the owning spouse. It ends when they stop being spouses, unless a separation agreement or court order says otherwise.

These rights belong to spouses. Unmarried partners are not covered by the matrimonial home rules.

What counts as a matrimonial home

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 they have separated, this is judged at the time of separation. A couple can have more than one matrimonial home.

• A house you live in as a family is the usual example.
• A cottage or rental unit depends on the facts, mainly whether it was ordinarily occupied as the family residence.
• Shares in a co-operative or corporation that give a right to occupy a housing unit count as an interest in that unit.

Spouses can also designate a property they own as a matrimonial home, and the designation may be registered in the proper land registry office. When both spouses register a designation, any other property that would be a matrimonial home but is not designated by both stops being one. A designation made by only one spouse does not release other properties.

Selling or mortgaging the home

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

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

A deed or mortgage registered under the Family Law Act must include one of the prescribed Family Law Act statements, such as that the property is not designated as a matrimonial home or that the person consenting is the transferor's spouse.

There is an exception. A court can set aside a sale or mortgage made in breach of these rules, but not if the buyer or lender acquired the interest for value, in good faith and without notice that it was a matrimonial home. If the other spouse cannot be found, cannot consent or unreasonably refuses, a court can authorize a sale or mortgage.

What happens on separation

Separation does not by itself remove a spouse from the home. A court may order that one spouse be given exclusive possession. It may also order a spouse to pay for repairs and maintenance.

When deciding exclusive possession, the court considers factors that include the best interests of the children, whether other suitable and affordable housing is available, and any violence by a spouse against the other spouse or the children.

The home also matters for money. The full value of the family home is shared, even if one spouse owned it before the marriage. A marriage contract term that tries to limit a spouse's matrimonial home rights is unenforceable.

If you are on a joint mortgage, each joint borrower is equally responsible for the unpaid balance, and separation does not change that contract with the lender. Whether a lender will remove a name or approve a refinance is up to the lender, and a family court order or agreement does not bind it.

What to do next

• Find out whose names are on title and whether any designation has been registered.
• Gather the mortgage, deed, tax and insurance documents.
• Do not sign a sale, mortgage or release without knowing what you are giving up.
• If you fear for your safety, tell a lawyer or support service so the violence factor can be raised.
• Ask a lawyer how these rules apply to your home, especially a cottage, a rental or a co-operative unit.

Frequently asked questions