Does My Spouse Have Rights to the Home If Not on Title in Ontario?

You may live in a home that your spouse bought alone, or that came from their family, and your name was never on the deed. It is natural to wonder whether you have any protection if they want to sell, borrow against it or separate.

This article explains in general terms how Ontario's Family Law Act treats a spouse who is not on title. The answer turns on whether you are married, whether the house is a matrimonial home, and what has been signed, so a lawyer can confirm your position.

Your right to live in the matrimonial home

A matrimonial home is property a spouse has an interest in that the spouses ordinarily occupy as their family residence, or did at separation. Both spouses have an equal right to possession of a matrimonial home, whoever is on title.

This right does not give you ownership. For a spouse with no ownership interest, the possession right is personal and ends when they stop being spouses, unless an agreement or order says otherwise. A court can order exclusive possession of the home under s. 24, regardless of who owns it.

Can the owner sell or mortgage without you?

Generally no. No spouse may dispose of or encumber, meaning sell or mortgage, an interest in a matrimonial home unless the other spouse joins in or consents, has released their rights in a separation agreement, or a court order authorizes it. A transaction that breaks this rule may be set aside under s. 23.

There is an exception for designated homes. Consent is not needed for a property that both spouses have not designated as a matrimonial home, where a joint designation of another property is registered and not cancelled. If you have signed something that mentions designation, a release or a consent, keep a copy and get advice about what it does.

• You can sign the document, which is joining in or consenting.
• You may have already given up your rights in a separation agreement.
• A court may have authorized the transaction.
• A different property may be validly designated by both of you.

If you think a sale or mortgage is being arranged without you, speak to a lawyer promptly. Anyone can search, view and download current and historical property records through OnLand for a fee, which can show what has been registered against the property.

If you are a common-law partner

The matrimonial home rules in Part II of the Family Law Act apply to spouses as defined in s. 1(1), meaning married couples. Ontario guidance says common-law couples are not legally required to split property acquired while living together, though a partner who contributed may have a claim and may need to go to court.

So an unmarried partner who is not on title generally cannot rely on the consent rule above. If you have put money or work into the home, keep your records and get legal advice early.

Separation and death

On marriage breakdown, the full value of the family home must be shared even if one spouse owned it before marriage or received it as a gift or inheritance, because the Act excludes gifts and inheritances other than a matrimonial home. Equalization claims must be made within six years of separation or two years of divorce, whichever comes first.

On death, a married surviving spouse of someone who died without a will may elect an equalization payment under the Family Law Act, filed no later than six months after the death. A common-law spouse does not inherit under the Succession Law Reform Act when there is no will. If a spouse dies owning a matrimonial home as a joint tenant with someone other than their spouse, such as an adult child, the joint tenancy is deemed severed immediately before death.

The deadlines are short in some cases, so do not wait to find out where you stand.

What to do next

• Confirm whether you are married or a common-law partner, because the rules differ.
• Work out whether the home is a matrimonial home: one you ordinarily occupy as your family residence.
• Gather anything you have signed about the home, such as consents, releases, separation agreements or designations.
• Keep records of contributions to the home, especially if you are not married.
• Note the deadlines for equalization and for an election after a death.
• Talk to a lawyer if a sale, mortgage or separation is coming up.

Frequently asked questions