How to Remove an Ex's Name From Title When They Won't Sign

Your relationship has ended, but your former partner's name is still on the property title. Maybe you want to keep the home, refinance, or sell, and they will not sign anything or will not reply. It is a stressful position, because changes to title go through a formal registration process handled by authorized users.

This article explains, in general terms, the paths that exist when someone will not cooperate: an agreement, a court order, or a forced sale. Which path fits depends on how you hold title, whether you were married, and what the court is asked to decide. A lawyer can confirm your options.

Why you usually cannot change title alone

Title changes through documents that are registered electronically. Only authorized Teraview account holders and their registered users can create and submit documents in Ontario's electronic land registration system, and those groups include lawyers, conveyancers and others. Registrations are entered by authorized users and then reviewed and certified by ServiceOntario, which updates the title information.

If your ex refuses to sign, you generally need an agreement they will honour or a court order that does the job instead.

The main routes when an ex will not sign

Under s. 100 of the Courts of Justice Act, a court may by order vest in any person an interest in real property that it has authority to order disposed of, encumbered or conveyed. Which order applies, and on what legal basis, depends on the facts. It might arise from family law, partition, or a claim about who really owns the property, and a lawyer can tell you which one fits.

Getting the court order right

Land registry guidance says a vesting order should use the word "vest" and avoid "convey", "transfer" or "re-vest". It should also state the full name and date of birth of the party in whom the land vests. The wording of the draft order matters as much as the decision itself, so it is worth having a lawyer check it against registry guidance.

Registry guidance also contemplates a court order directing the Land Registrar to alter the register, which is a separate document type from a vesting order. Because the two are different, the order should say clearly what the court is asking the registry to do.

• Ask your lawyer which type of order your situation needs.
• Make sure each person's full legal name and date of birth are available for the order.
• Check the order's wording against registry requirements before relying on it.

If you own the home together and the relationship is over

Joint tenants have a prima facie right to force a sale under s. 2 of the Partition Act, and the person resisting the sale carries the onus of showing why the property should not be sold. A court will refuse only if satisfied that the party seeking the sale is acting in a malicious, vexatious or oppressive fashion. For a sale, the Act permits an order only where the court considers a sale more advantageous to the parties interested.

In one Court of Appeal decision, the court upheld an order that the house be sold unless the appellant bought out the other owner's interest. That shows a buyout can be an alternative to a sale. Appeals from Partition Act orders go to the Divisional Court, not the Court of Appeal.

If you were married, family law rights can also affect the home, and a lawyer should look at that before you choose a route.

Tax and registration issues to expect

Transfers between spouses or former spouses are taxable for land transfer tax unless a Regulation 696 exemption applies. The exemption cases are where the only consideration is assuming a registered encumbrance, where the transfer complies with a written separation agreement, or where it complies with a court order or judgment. In the second and third cases, the value is the consideration given plus the amount owing on encumbrances.

For an electronic registration, the exemption is claimed with Teraview statement 9085 plus 9086, 9087 or 9088 depending on the situation. On paper, the value is stated in paragraph 2 of the land transfer tax affidavit and the exemption is explained in paragraph 5. Your lawyer will handle these statements.

Be careful about severance. If you hold as joint tenants, survivorship may apply on death, while a tenant in common's share falls into the estate. Changing between tenancy in common and joint tenancy between the same parties is not a conveyance, so the consideration is nil. How survivorship would apply if a former spouse died while the title is still shared depends on your situation, so it is worth confirming with a lawyer.

What to do next

• Get a current copy of the title and note exactly how the owners hold it.
• Collect any separation agreement, court order, mortgage statements and correspondence about the property.
• Write down every attempt you made to get your ex to sign and their responses.
• Ask a lawyer which order fits your situation and whether it can be sought with or without a sale.
• Ask about land transfer tax and any exemption before you agree on a buyout price.

Do not stop paying the mortgage, taxes or insurance because of the dispute. Those costs can create separate problems while the question of title is sorted out.

Frequently asked questions