Divorce and the Matrimonial Home in Ontario: Four Rules That Surprise People
When a marriage ends in Ontario, the house is usually the largest asset and always the most
emotional one. It is also governed by rules that surprise almost everybody, including people who
have already spoken to a lawyer about everything else.
I am not a family lawyer and this is not advice. But I sell houses for separating couples, and
there are four things I end up explaining in almost every one of those conversations.
1. Neither of you can sell it without the other
This is the one that stops people cold. It does not matter whose name is on title.
Section 21(1) of the Family Law Act says no spouse shall dispose of or encumber an interest in a
matrimonial home unless the other spouse joins in or consents, has released their rights in a
separation agreement, a court order authorises it, or another property has been designated instead.
If someone does it anyway, section 21(2) says the transaction may be set aside. Sole ownership does
not get you around this. Neither does moving out.
2. Both of you can stay, until a court says otherwise
Section 19(1) is one sentence long: both spouses have an equal right to possession of a
matrimonial home.
Not the owner. Both. So the common assumption that the person on title can change the locks is
wrong, and acting on it tends to go badly.
A court can order exclusive possession under section 24(1), regardless of who owns the home. But
note what that order does and does not do. It decides who lives there. It does not give that person
the right to sell.
Part II of the Family Law Act, the part that creates all of the protections above, applies to \u201cspouses.\u201d The Act defines a spouse in section 1(1) as either of two people who are married to each other, or who entered into a void or voidable marriage in good faith. That is it. If you lived together for fifteen years and never married, the matrimonial home rules do not apply to you. Your claim, if you have one, is a different kind of claim entirely and usually harder. People routinely assume common law means the same thing after some number of years. For this part of the Act, it does not.
3. The house is treated differently from everything else you owned before the marriage
Ontario equalizes net family property. Broadly, you each calculate what you are worth on the
valuation date, subtract what you were worth on the date of marriage, and the person with the larger
increase pays half the difference to the other.
Except the matrimonial home gets carved out of that subtraction.
Section 4(1) defines net family property as the value of property owned on the valuation date after
deducting debts and “the value of property, other than a matrimonial home, that the
spouse owned on the date of the marriage.”
If you owned the house outright before you married, and it became the matrimonial home, you do
not get to deduct its date-of-marriage value. The whole value sits in your net family property.
People who brought a house into a marriage are frequently shocked by this, and it is settled law,
not a technicality a good lawyer can argue away.
There is also more than one matrimonial home possible. Section 18(1) defines it by occupation, not
by count. A cottage the family ordinarily used can qualify.
4. Selling well and separating well are different problems
Here is where I can actually help, and where I see the most money lost.
A house sold by two people who are barely speaking tends to sell badly. Not because of the market.
Because the decisions that make a sale go well, agreeing a price, agreeing to fix the roof, agreeing
to accept an offer on a Tuesday, all require two people to cooperate at the exact moment cooperating
is hardest.
- Agree the process before the price. Who decides on offers, what happens on a
tie, how the proceeds are held. Get it in writing through your lawyers before the sign goes up. - Decide about occupancy early. A home someone is still living in, unhappily,
shows differently from an empty one. That is a real dollar difference, and it is worth negotiating
rather than fighting about. - Use one agent, or two, but decide deliberately. Duelling agents on one listing
is a mess. So is one agent who is obviously closer to one spouse. Both are solvable if named up
front. - Do not agree a buyout number off a website estimate. If one of you is buying
the other out, that number is the whole negotiation. It deserves a real valuation, and both of you
should be comfortable with where it came from.
The house is the last asset you own together and the first one you can convert into two separate
futures. Every month you spend fighting about it is a month you are both paying for it. That is not
a moral point, it is an arithmetic one.
Family law is genuinely complicated and the facts of your situation change the answer. Nothing
here substitutes for an Ontario family lawyer, and if you are separating you should have one before
you sign anything, including a listing agreement.
Where This Comes From
Written from the Family Law Act, R.S.O. 1990, c. F.3, read directly on Ontario’s e-Laws site. Sections referenced: 1(1), 4(1), 18, 19, 21 and 24.
Frequently Asked Questions
Can my spouse sell the house without my consent in Ontario?
Do common law partners have matrimonial home rights in Ontario?
Who has to move out of the matrimonial home during a separation?
Do I get credit for owning the house before we married?
Can there be more than one matrimonial home?
Related Reading
- Power of Sale in Ontario
- Should I Buy or Sell First?
- Home Seller Checklist
- Your Home Is Not Selling. Now What?
If you are separating and need a defensible number for a buyout rather than a website estimate, that is something I can prepare properly, and I am comfortable working with both sets of lawyers so nobody feels the number came from the other side.