Can You Sell Your House Without Your Spouse's Consent in Ontario?

You want to sell, and your spouse will not sign, cannot be reached, or the relationship has broken down. Maybe only your name is on title and you assumed that was enough. In Ontario, it often is not.

This article explains what makes a home a matrimonial home, the ways a sale can lawfully go ahead, what can happen if you sell without consent, and how a court can step in. It is general information, not advice on your situation.

What counts as a matrimonial home

A property is a matrimonial home if a spouse has an interest in it and it is or was ordinarily occupied by the spouses as their family residence. Both spouses have an equal right to possession of it.

This is not about whose name is on title. A home owned by only one spouse can still be a matrimonial home. Separation also does not end spouse status for these rules.

The four ways a sale can lawfully go ahead

Under the Family Law Act, a spouse may not sell or mortgage an interest in a matrimonial home unless one of the following applies:

• The other spouse joins in the sale or consents to it.
• The other spouse has released their rights in a separation agreement.
• A court order authorizes the sale or mortgage.
• Another property is registered as the matrimonial home by both spouses.

The rule covers mortgaging as well as selling, so it matters when you refinance or take out a home equity loan, not just when you list the house.

What happens if a spouse sells without consent

A sale made without the required consent can be set aside on an application under section 23 of the Family Law Act. That can unwind a deal after you thought it was finished.

There is an exception. The sale cannot be set aside if the current holder bought for value, in good faith, and without notice that the property was a matrimonial home. Whether a buyer meets that test depends on the facts, so it is worth getting legal advice early if a sale has already happened or is being planned.

Asking a court to authorize the sale

If consent is the problem, you are not necessarily stuck. A court may authorize the sale or mortgage of the matrimonial home if the spouse whose consent is needed:

• cannot be found;
• is not capable of consenting; or
• is unreasonably withholding consent.

What counts as unreasonable depends on the circumstances, and a court decides that, not either spouse. A lawyer can tell you what evidence is usually useful and whether a court application makes sense for you.

Common-law partners and co-owners

The matrimonial home rules use the section 1(1) definition of spouse, which covers married persons, including void or voidable marriages. The wider definition that includes unmarried cohabitants applies only to the support part of the Act. So the consent rule does not protect unmarried partners.

The consent rule not applying to unmarried partners does not settle every question about a shared home. How the rest of the law applies to an unmarried partner depends on your situation, so it is worth confirming with a lawyer.

If the dispute is between co-owners who cannot agree on selling, a separate route exists. All joint tenants, tenants in common and coparceners may be compelled to partition or sell the land. Any person interested in the land may bring an action or application for partition or sale. Where land is held by will or intestacy, no partition proceeding may start until one year after the death.

What to do next

• Confirm whether the property is, or ever was, your family residence.
• Check whether you and your partner are married, since the consent rule depends on that.
• Find any separation agreement and see whether it releases rights in the home.
• Ask your spouse in writing for consent, and keep a record of the response.
• Do not sign an agreement of purchase and sale until you know which of the four routes applies.
• Speak to a family or real estate lawyer before applying to court or going ahead without a signature.

Frequently asked questions