No, not if you are married and it is your matrimonial home. Under Ontario's Family Law Act, a spouse cannot sell, transfer or mortgage an interest in the matrimonial home unless the other spouse joins in or consents, the other spouse has released those rights in a separation agreement, or a court authorizes it. This applies even when only one spouse's name is on title.
These are rights under Part II of the Act, which deals with the home itself; how the home's value is shared is a separate calculation, covered on our page about property division in Ontario.
How do you protect the family home, step by step?
| Step | What to do | Family Law Act |
|---|---|---|
| 1. Confirm it is a matrimonial home | A property a spouse has an interest in that you ordinarily lived in as your family residence, at separation or now | s. 18 |
| 2. Check the title | Find out whose name is on title and whether any mortgage or line of credit is registered | ss. 19 and 21 |
| 3. Register a designation | Either spouse can designate the home in the prescribed form and register it on title | s. 20 |
| 4. Refuse to sign | Do not consent to a sale, transfer or new mortgage you have not had advice on | s. 21(1) |
| 5. Go to court if needed | Ask the court to decide whether the property is a matrimonial home, to set aside a transaction made without consent, or to authorize a sale | s. 23 |
| 6. Register the order | Orders under Part II can be registered against the land | s. 27 |
Matrimonial home claims are heard by the Superior Court of Justice, not the Ontario Court of Justice, because the Family Law Act does not treat the Ontario Court of Justice as a "court" for Part II. In Toronto that means 361 University Avenue; our guide to which Toronto family court handles your case explains the split, and York Region homes go to the Family Court in Newmarket.
What counts as the matrimonial home?
Every property in which a spouse has an interest and that is, or was at the time of separation, ordinarily occupied by the spouses as their family residence (section 18). A couple can have more than one matrimonial home, for example a house and a cottage both used as family residences. Owning a share in a corporation that entitles the owner to occupy one of its housing units counts as an interest in that unit. The Part II rules apply to matrimonial homes located in Ontario (section 28(1)), so a family home in Iran is not covered by them, although its value still counts in equalization.
What exactly does the consent rule cover?
| Without consent, a spouse cannot... | ...unless |
|---|---|
| Sell or transfer an interest in the home | The other spouse joins in the document or consents to the transaction |
| Mortgage, refinance or otherwise encumber it | The other spouse has released all rights under Part II in a separation agreement |
| Dispose of it in any other way | A court order authorizes the transaction or releases the property from Part II |
| (any of the above) | The property is not designated by both spouses, and another property designated by both is registered as their matrimonial home |
Both spouses also have an equal right to possession of a matrimonial home, whoever owns it (section 19). If only one spouse owns it, the other's right of possession is personal to them and ends when they stop being spouses, for example on divorce, unless a separation agreement or court order says otherwise. A marriage contract cannot take these Part II rights away (section 52(2)).
What happens if the home is sold or mortgaged anyway?
The transaction can be set aside by the court, and the interest put back, on conditions the court sets (sections 21(2) and 23(d)). There is an important limit: it cannot be undone against a buyer or lender who acquired the interest for value, in good faith and without notice that the property was a matrimonial home. A written statement by the person selling or mortgaging, for example that they are not a spouse or that the property is not the family residence, is treated as sufficient proof that it is not a matrimonial home unless the buyer or lender knew otherwise (section 21(3)).
That limit is why acting early matters. If your spouse could sign a false statement and a good-faith buyer or lender relies on it, the deal may stand, and you would be left with a claim against your spouse rather than the home.
How can you protect yourself?
- Register a designation. One or both spouses can designate a property as a matrimonial home in the prescribed form and register the designation in the land registry office (section 20). A registered designation then appears on the land registry record for the property.
- Ask the court for an order. In a family case, the court can decide whether a property is a matrimonial home and how far it extends, and can set aside a transaction made without consent (section 23). Orders under Part II can be registered against the land (section 27).
- Keep paying attention to mortgage notices. A spouse with a right of possession has the same right as the owner to notice and to redeem if a lender enforces a mortgage, lien or other charge against the home (section 22).
Our first-week separation checklist puts the home alongside the other early steps after separating.
What if your spouse refuses to consent to a reasonable sale?
The rule works in both directions. The court can authorize a sale or mortgage without a spouse's consent if that spouse cannot be found or is not available, is not capable of giving or withholding consent, or is unreasonably withholding consent. The court can attach conditions, such as other comparable accommodation or a payment in place of it (section 23(b)).
Does the home count differently in equalization?
Yes. When net family property is calculated, a spouse who brought other property into the marriage can deduct its value on the wedding date, but not the value of a matrimonial home (section 4(1)). A gift or inheritance received during the marriage is excluded from net family property, except when it is the matrimonial home or has been put into it (section 4(2), items 1 and 5). Equalization claims also have firm time limits; see the deadlines in an Ontario family case. For homes and other property outside Canada, read whether property in Iran counts in Ontario.
Do these rules protect unmarried partners?
No. Part II of the Family Law Act uses the Act's general definition of spouse, which means people who are married to each other (section 1(1)). Unmarried partners whose names are not on title need advice on other ways to protect an interest in the home, and their support rights are explained in common-law spousal support in Ontario.
What changes the answer?
- Whether you are married. Part II protects spouses as defined in s. 1(1), which means married people.
- Where the home is. Part II applies only to matrimonial homes situated in Ontario (s. 28(1)).
- Whether you released your rights. A separation agreement can release Part II rights; a marriage contract cannot limit them (ss. 21(1)(b) and 52(2)).
- Whether a designation is registered. Designations change which property needs consent (s. 20 and s. 21(1)(d)).
- Whether the buyer or lender acted in good faith. A transaction cannot be set aside against someone who acquired for value, in good faith and without notice (s. 21(2)).
- Whether you are still spouses. A non-owner's right of possession ends on divorce unless an agreement or order says otherwise (s. 19(2)).
A worked example
For example, imagine a couple in Vaughan whose house is in the husband's name only. After they separate, the wife learns from a neighbour that he has listed the house for sale and plans to send the money abroad. She does not sign the listing documents. Through her lawyer she registers a designation of the house as a matrimonial home on title, so any buyer or lender searching the title will see it. She then starts a case in the Family Court in Newmarket, claiming equalization and asking the court to decide the home issues. If he had already signed a mortgage by falsely stating he was not married, the court could set it aside, but not against a lender who relied on his statement in good faith, which is why speed mattered. Our guide to how York Region family cases work describes that court. This is a hypothetical walk-through, not a prediction of any result.
What mistakes do people make with the family home?
- Moving out and assuming the home is now the other spouse's. Both spouses keep an equal right of possession.
- Signing a consent or a "spousal statement" without reading it, for example at a bank refinancing.
- Waiting to register a designation until after a deal has closed.
- Assuming the rules cover a home in Iran or another country. Part II stops at Ontario's borders.
- Assuming common-law partners have the same rights. They do not.
What to do this week
- Search the title of the home, or ask a lawyer to, to see whose name is on it and what is registered.
- Keep copies of any listing, mortgage or refinancing papers you are asked to sign.
- Ask a lawyer about registering a designation.
- Keep paying attention to mortgage and tax notices for the home.
- List the home's value and the mortgage balance as of your separation date for your financial statement.
Frequently asked questions
Can my spouse change the locks or make me leave?
Both married spouses have an equal right to possession of a matrimonial home, whoever owns it (s. 19). Disputes about who stays in the home after a domestic incident involve criminal and family issues together and need advice right away.
Does a cottage count as a matrimonial home?
It can, if the family ordinarily occupied it as a family residence. A couple can have more than one matrimonial home (s. 18).
Can my spouse mortgage the house to pay their own debts?
Not without your consent, a release in a separation agreement, or a court order (s. 21(1)).
What if my spouse is overseas and cannot sign a sale we both want?
The court can authorize a sale if a spouse cannot be found or is not available, or is unreasonably withholding consent (s. 23(b)).
Does registering a designation stop a sale completely?
It puts buyers and lenders on notice, which removes the good-faith defence for anyone who searches the title. A sale with your consent or a court order can still go ahead.
Does my mahr or marriage contract change these rules?
A marriage contract cannot limit a spouse's Part II rights (s. 52(2)). A mahr is treated as a contract; see whether a mahr is enforceable in Ontario.
Sarbazevatan Law acts for spouses on matrimonial home and property division issues, in English, Persian (Farsi) and French. Call +1 (416) 628-2041 or reach us through the contact page.