How to Take an Ex Off Your Home Title and Mortgage in Manitoba

After a separation, one person often keeps the home. That usually means two jobs: changing who is named as owner, and getting the lender to agree that the other person is no longer responsible for the mortgage.

These two jobs are handled with different people and different paperwork. This article walks through the order that usually makes sense in Manitoba, and the points where a lawyer's help is most valuable.

This article covers the law of Manitoba.

Title and mortgage are two different things

Title records who owns the property. The mortgage is a debt owed to the lender and secured against the property. How a change to title affects the mortgage depends on your lender and the terms you signed, so it is worth confirming with a lawyer before you rely on any agreement. Unless the lender agrees otherwise, your ex can remain liable for the debt.

The Real Property Act deals with mortgages and encumbrances, including how they are discharged. A discharge ends the registered mortgage; it is not the same as changing the borrowers on it, which depends on the lender's agreement.

Check the family property rules first

Before you transfer anything, understand how the home is treated in a separation. Under The Family Property Act, a family asset includes a family home. Each spouse or common-law partner has the right on application to an accounting and, subject to s. 14, equalization, and the total is generally divided into two equal shares. The Act does not itself require the home to be sold.

A court may alter the equal division of family assets if it would be grossly unfair or unconscionable, considering extraordinary financial or other circumstances or the extraordinary nature or value of the assets, and conduct is not considered unless it amounts to dissipation. A common-law partner is someone who registered under s. 13.1 of The Vital Statistics Act or lived in a conjugal relationship, unmarried, for at least three years.

Time limits matter. Spouses generally apply for an accounting within 60 days after a divorce takes effect or a nullity decree is completed. Common-law partners apply within 60 days after a registered dissolution or, if unregistered, within three years after beginning to live separate and apart. The court may extend these periods. Do not let these dates pass while you sort out the house.

If the issue is who lives in the home right now, that is a separate order of exclusive occupation under Part 5, s. 80 of The Family Law Act.

Steps to move title into your name

• Settle the buyout or division terms in writing, ideally in a separation agreement or court order.
• Obtain a current title search for the property.
• Have a transfer prepared for the ex's interest, signed by the ex.
• Arrange the registration, which in Manitoba is electronic and goes through Teranet Manitoba.
• Pay any land transfer tax and registration fee that applies on registration.

Manitoba land transfer tax is payable by the buyer, with some exceptions, plus a registration fee. It is calculated on the fair market value of the realty on the date of registration, not simply the contract price. The government page mentions exceptions but does not list them, so ask a lawyer whether any applies to a transfer between separating partners.

Registration takes effect from the day the instrument is assigned a serial number.

Getting the lender to release your ex

The lender decides whether you can carry the mortgage alone. Expect them to look at your income, credit and the value of the home. Options may include a mortgage assumption in your name only, refinancing with a new mortgage, or paying out the mortgage. Which of these is available depends on the lender and your finances.

• Ask the lender what they need for a release of covenant or an assumption.
• Provide proof of income and any support payments you receive or pay.
• If you refinance, the old mortgage is discharged and a new one registered.
• Keep written confirmation that your ex is released from the debt.

Until the lender confirms in writing, assume your ex is still responsible. Many agreements give a deadline for this reason.

What to do next

• Note your family property deadlines today.
• Gather the mortgage statement, title search and recent valuation.
• Speak with your lender early about whether you qualify alone.
• Have a lawyer review the transfer and any separation agreement before you sign.
• Confirm whether any land transfer tax applies to your transfer.

Frequently asked questions