Second Marriage Joint Home and Children From First Marriage Ontario

In a blended family, a joint home can raise a hard question. You may want your new spouse to be secure, but you may also worry that when the survivor dies, the home will go to their relatives and not to your children from a first marriage.

This article explains how survivorship works on a jointly owned home in Ontario and how a joint tenancy can be severed. It is general information, not advice on your situation. Severance has real consequences for both spouses, so talk to a lawyer before acting.

Why the survivor may take the home outright

In Ontario, if you own property as a joint tenant, it automatically passes to the surviving owner when you die. The deceased's share does not go through the estate. A will cannot by itself sever a joint tenancy, and survivorship takes precedence over a will.

That is the source of the worry. If your spouse survives you, they become the sole owner. What they do with the home afterwards is up to them, and your children have no automatic claim to it. The result follows from how title is held, not from your wishes or your family's expectations.

If the home is held as a tenancy in common instead, the deceased's interest passes to their estate. Check your title first, because the form of ownership is the starting point for everything else.

How a joint tenancy can be severed

Ontario's Court of Appeal recognizes three ways to sever a joint tenancy:

• Acting unilaterally on your own share, such as selling or encumbering it.
• A mutual agreement between the co-owners.
• A course of dealing that shows the interests of all were mutually treated as severed.

On the course-of-dealing method, a secret intention is not enough. An intention declared only behind the backs of the other co-owners will not suffice, and a declared intention not communicated to a co-owner is on its own insufficient. The Court has also said it is not clear that a mere expression of intention is enough to achieve severance. The practical lesson is that severance should be done in a clear, documented way.

The registered transfer to yourself

Ontario land registration guidance states that a joint tenant can sever the joint tenancy by executing and registering a deed or transfer to himself or herself. The land registrar then shows that transferee as a tenant in common with the other registered owners.

No land transfer tax is payable on a transfer to oneself registered to sever a joint tenancy, where the transferor and transferee are the same person. The affidavit must say the deed is registered solely to give effect to the severance. Registration itself has a fee. From November 2, 2026, the electronic registration fee is $86.42 including HST. Legal fees are separate and not covered here.

Where there are three joint tenants, a conveyance by one severs only that tenant's interest, not the whole joint tenancy.

Comparing the options and their consequences

A charge registered by fewer than all the joint tenants does not automatically sever the tenancy, and severance happens if the chargee enforces by power of sale or foreclosure. If a joint tenant who charged their interest alone dies first, the survivors go on title subject to the charge, which is not removed unless a cessation is registered or a court orders its discharge.

Severing also changes things for your spouse. Their security in the home is no longer guaranteed by survivorship. Think about whether that is what you both intend, and whether your spouse should be told, since a secret step is unreliable. A family lawyer can also explain your spouse's rights on death, such as the 6-month restriction on distributing a deceased spouse's estate without a statement, court order or written consent.

What to do next

• Get a current copy of title and confirm whether you hold as joint tenants or tenants in common.
• Talk openly with your spouse about what each of you wants for the home.
• Ask a lawyer how severance, your estate plan and your spouse's rights fit together.
• Check for any mortgage or charge on title.
• Keep written records of any agreement you reach.
• If you are not legally married, remember that a common-law spouse does not inherit on an intestacy.

Frequently asked questions