Ontario Family Law Considerations when Selling a Matrimonial Home

If you're thinking of selling your matrimonial home, then you should be aware of the following considerations in the Family Law Act (FLA).

Part II of the FLA is entirely devoted to a matrimonial home that is located within Ontario. Part II only applies in the context of marriage and not to persons in a common law relationship. Under section 18 of the FLA, a matrimonial home is defined as every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation, ordinarily occupied by the person and his or her spouse as their family residence. In other words, a matrimonial home is the house in which the spouses ordinarily occupied. Spouses may own more than one matrimonial home, such as a cottage, once it meets the definition of a matrimonial home.

Under section 19 of the FLA, both spouses have an equal right to possession of a matrimonial home. This means that even though one spouse may legally own the house, the other non-owning spouse is entitled to a half interest in the matrimonial home too. The FLA states that when only one of the spouses has an interest in a matrimonial home, the other spouse's right of possession is personal as against the first spouse and ends when they cease to be spouses, unless a separation agreement or court order provides otherwise. Therefore, both spouses have a right to live in the matrimonial home, regardless of if they have separated. Neither spouse is authorized to change any locks nor prevent the other spouse from living in the matrimonial home, unless a court order or separation agreement addresses this issue.

Because both spouses have an equal right to possession of a matrimonial home, both spouses must consent to the sale of the matrimonial home. Under section 21 of the FLA, no spouse shall dispose of or encumber an interest (example: register a mortgage) in a matrimonial home unless one of the following occurs: (1) the other spouse joins in the instrument or consents to the transaction (including sale); (2) the other spouse has released all rights under this Part by a separation agreement; (3) a court order has authorized the transaction or has released the property from the application of this Part; or (4) the property is not a matrimonial home. Therefore, the non-owning spouse of the matrimonial home must provide express written consent to sell the matrimonial home.

Matthew Wilson is a real estate and land development lawyer in London, Ontario. The content contained in this blog is intended to provide information about the subject matter and is not intended as legal advice. It is accurate only as of the date it was first published. If you would like further information or advice please contact the author.