Selling a Home During Separation: Spousal Consent in Ontario

You may be the only name on title, but that does not always mean you can sell the family home on your own. When spouses separate, the law treats the matrimonial home differently from other property, and buyers' lawyers will ask about it.

This article explains how spousal status is dealt with when a home is sold, what a court order can do, and why the proceeds are a separate question from who signs. Every separation is different, so a family lawyer should confirm how this applies to you before you list.

Why your spouse can matter even if you are the only owner

Whether your home counts as a matrimonial home depends on your facts, so it is worth confirming with a lawyer. Because of that, Ontario land registration practice builds the question of spousal status into the paperwork for selling it.

On a Land Titles transfer or charge of a matrimonial home, the instrument must carry one of nine spousal-status statements, for example 'We are spouses of one another', or a statement that the property was not ordinarily occupied as the family residence at separation. A consent can be framed as 'The person consenting below is my spouse'.

In plain terms, the buyer's lawyer needs a clear answer on your spousal status and the home's status. Which statement is right for you depends on your facts, including when you separated and whether the home was your family residence, so a lawyer should choose it with you.

Three common ways the issue is resolved

If your spouse will not cooperate, the court order route exists for that situation, but whether a court would grant one depends on the facts. That is a question for a family lawyer.

Designations of the matrimonial home

Under s. 20 of the Family Law Act, one spouse can register a single designation of a property as a matrimonial home, even where the other spouse owns it. Once registered, it stays on the parcel register until the spouse who registered it removes it.

If you see a designation on your title search, ask a lawyer how it affects your sale before you go further. A joint designation by both spouses releases other properties from matrimonial-home status. Ask your lawyer to review your parcel register before you sign a listing agreement.

Selling is one question, dividing the money is another

Even if the sale itself goes smoothly, you will still have to deal with how the value is shared. When a marriage ends, the full value of the family home is shared even if one spouse owned it before the marriage or received it as a gift or inheritance.

There are time limits. The time limit to go to court over an equalization payment is six years from separation or two years from the final divorce, whichever comes first. Common-law partners are not legally required to split property under this regime, though other legal claims may exist and are worth raising with a lawyer.

• Do not spend or move the proceeds before you have agreed or been advised on how they will be shared.
• Ask whether the proceeds should be held in your lawyer's trust account until the division is settled.
• Keep records of what you paid toward the home, including the original purchase documents.

What to do next

• Order a title search and look for any matrimonial home designation.
• Work out whether the home was your family residence at separation, because the spousal-status statement depends on it.
• Talk to your spouse, or their lawyer, about whether a consent will be signed.
• If consent is not possible, ask a family lawyer whether a s. 23 court order is realistic.
• Agree in writing, or get advice, on how proceeds will be held and divided.
• Tell your real estate lawyer about the separation before you list, not after you receive an offer.

Putting the home on the market before the spousal question is settled can lead to a deal that cannot close. Raising the spousal question with your lawyer early gives you more time to sort it out.

Frequently asked questions