Matrimonial Home Rights in Ontario: What Each Spouse Can Do

If you are married, the home you live in has special legal protection in Ontario, even if only your spouse is on title. These rules apply while you are together and when you separate.

This article gives an overview of what each spouse can do: who can live in the home, when it can be sold or mortgaged, and how courts step in.

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.

Owning shares in a corporation that give a right to occupy a housing unit counts as an interest in that unit. Whether a cottage or rental qualifies depends on the facts, so ask a lawyer.

On application, a court may decide whether a property is a matrimonial home.

Equal right to possession

Both spouses have an equal right to possession of a matrimonial home, whether or not their name is on title. If only one spouse has an interest, the other spouse's right 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 apply to married spouses. They do not apply to unmarried cohabitants. Property of unmarried partners generally belongs to whoever bought it, although a partner who contributed to the other's property may have a claim to part of it, which may require going to court.

A marriage contract term that tries to limit a spouse's rights under Part II (Matrimonial Home) is unenforceable.

Limits on selling or mortgaging

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.

A court can set aside a sale or mortgage made in breach, but not if the buyer or lender acquired the interest for value, in good faith and without notice that it was a matrimonial home. A deed or mortgage registered under the Act must include one of the prescribed Family Law Act statements. A court may authorize a sale or mortgage where the other spouse cannot be found, cannot consent or unreasonably refuses.

If a spouse dies owning a matrimonial home as a joint tenant with someone other than the other spouse, the joint tenancy is treated as severed immediately before death.

Designation, joint mortgages and exclusive possession

One or both spouses may designate a property as a matrimonial home, and the designation may be registered. When a designation made by both spouses is registered, other properties not designated by both stop being matrimonial homes. A designation by only one spouse does not release other properties. A designation is cancelled in several cases, including a divorce judgment or proven death.

On application, a court may give one spouse exclusive possession and may order repairs and maintenance to be paid. It considers factors including the best interests of the children, other suitable and affordable housing, and any violence by a spouse against the other or the children. The court may also authorize disposing of or encumbering a spouse's interest, subject to the other spouse's exclusive possession.

A person may also apply to court to decide a question of ownership or possession of particular property between them and their spouse.

If you signed a mortgage as a joint borrower, each of you is equally responsible for the unpaid balance, and separation does not change that contract with the lender.

How the home fits into property division

The matrimonial home is treated differently when property is divided. No date-of-marriage deduction is allowed for a matrimonial home, and the family home's full value is shared even if one spouse owned it before the marriage.

• Property received as a gift or inheritance from a third person after the marriage is generally excluded, but that exclusion does not apply to a matrimonial home.
• A gift or inheritance used to buy or pay down the family home loses its protection.
• The spouse claiming a deduction or exclusion has the onus of proving it.

Taxes can also matter. A house transferred to a spouse, or to a former spouse in settlement of rights arising from the relationship, generally rolls over at the transferor's adjusted cost base, so no capital gain is triggered at transfer unless the transferor elects out in their return for that year. This applies only if both the transferor and the transferee are resident in Canada at the time of the transfer. How this applies to you depends on your situation, so it is worth confirming with a lawyer or accountant.

What to do next

• Check who is on title and whether any designation is registered.
• Do not sign a sale or mortgage document without understanding your spousal rights.
• Keep copies of mortgage and title documents.
• If safety is a concern, get legal advice promptly about exclusive possession.
• Remember the home's value is also relevant to property division.

Frequently asked questions