Can My Spouse Sell the House Without My Consent in Ontario?

Finding out that your spouse may be thinking of selling or borrowing against the family home is stressful, especially when the home is in their name alone. Many people assume that title decides everything. In Ontario, the law gives a spouse protections that do not depend on whose name is on the deed.

This article explains the general rules about selling or mortgaging a matrimonial home, the exceptions that matter, and the steps people often consider. It is general information, and your own facts can change the answer.

What counts as a matrimonial home

A matrimonial home is any property in which a spouse has an interest and that is or was ordinarily occupied by the spouses as their family residence. If you have separated, this is judged at the time of separation. A couple can have more than one matrimonial home. Whether a property such as a cottage counts depends on whether it was ordinarily occupied as the family residence, so it is worth confirming with a lawyer.

Both spouses have an equal right to possession of a matrimonial home, whether or not their name is on title. If you own shares in a co-operative or corporation that give a right to occupy a unit, that counts as an interest in the unit for these purposes.

When consent or a court order is needed

A spouse may not sell or mortgage an interest in a matrimonial home unless one of four things is true:

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

A deed or mortgage registered under the Family Law Act must include one of the prescribed statements, for example that the property is not designated as a matrimonial home or that the person consenting is the transferor's spouse. A marriage contract term that tries to limit your matrimonial home rights is unenforceable.

The good-faith buyer exception

A court can set aside a sale or mortgage made without the required consent. It cannot do so if the buyer or lender acquired the interest for value, in good faith and without notice that the property was a matrimonial home. This is why the rules about registered designations and the statements in deeds matter.

Whether a particular buyer or lender had notice is a question of fact. If a transaction has already happened or is about to, get legal advice quickly rather than waiting.

Ways spouses protect their position

A court can be asked to step in. On application, it may decide whether a property is a matrimonial home. It may authorize a sale or mortgage where the other spouse cannot be found, cannot consent or unreasonably refuses to consent, and it may set aside improper transactions.

• Designation: one or both spouses may designate a property as a matrimonial home and register the designation in the proper land registry office. A designation by only one spouse gives notice of a potential spousal interest, but it does not release other properties.
• Exclusive possession: the court may order that one spouse be given exclusive possession of the matrimonial home. It considers factors that include the best interests of the children, the availability of other suitable and affordable housing, and any violence by a spouse against the other spouse or the children.
• Preservation orders: in an equalization or title application, the court may make interim or final orders restraining the depletion of a spouse's property.

A designation is cancelled, and the property stops being a matrimonial home, when a proper cancellation is registered, a divorce or nullity judgment is made, a court orders it, or a spouse's death is proven.

What to do next

If you are worried about a sale or mortgage, act early. A few practical steps may help:

• Gather your marriage date, separation date and any agreements you have signed.
• Find out who is on title and whether any mortgage or designation is registered.
• Do not sign any consent, release or mortgage document until you understand it.
• Keep records of anything your spouse says about selling or borrowing.
• Speak with an Ontario family lawyer about whether to ask for a court order.

Unmarried partners are not spouses for matrimonial home purposes under Part II of the Family Law Act, so these protections do not apply to them. Their rights depend on other claims, which a lawyer can review.

Frequently asked questions