Matrimonial Homes in Ontario: What Every Spouse Needs to Know

For many separating couples, the family home is often the most valuable asset and the center of

significant legal disputes. What many homeowners do not realize is that in Ontario, ownership alone does not necessarily give one spouse the unrestricted right to sell, mortgage, or otherwise deal with the family home. The Ontario Family Law Act provides special protections for matrimonial homes that can override normal property rights.

What Is a Matrimonial Home?

A matrimonial home is generally a property that is ordinarily occupied by spouses as their family

residence. Regardless of whose name appears on title, both spouses acquire possessory rights in the matrimonial home during the marriage.

Restrictions on Selling or Mortgaging a Matrimonial Home:

According to section 21(1) of Ontario's Family Law Act, “a spouse cannot sell, transfer, mortgage, or otherwise encumber an interest in a matrimonial home without the consent of the other spouse, except in limited circumstances"

(a) the other spouse joins in the instrument or consents to the transaction;

(b) the other spouse has released all rights under this Part by a separation agreement;

(c) a court order has authorized the transaction or has released the property from the application of this Part; or

(d) the property is not designated by both spouses as a matrimonial home and a designation of another property as a matrimonial home, made by both spouses, is registered and not

cancelled.

These protections prevent one spouse from unilaterally selling or mortgaging the family home while the other spouse continues to have rights under the Family Law Act.

When Can the Court Authorize a Sale?

Section 23 of the Family Law Act gives the court broad authority to deal with disputes involving

matrimonial homes. Upon application by a spouse or another interested person, the court may:

(a) Determine whether a property is a matrimonial home.

(b) Authorize the sale or mortgage of the property if the spouse whose consent is required cannot

be located, lacks capacity to consent, or is unreasonably withholding consent

(c) Dispense with notice requirements where appropriate.

(d) Set aside an improper sale or mortgage of a matrimonial home and restore ownership on terms the court considers appropriate.