Spouse Refuses to Sell the Matrimonial Home in Ontario
Can Your Spouse Refuse to Sell the Matrimonial Home in Ontario?
A disagreement about selling the family home can become one of the most difficult financial issues after separation.
One spouse may want to sell immediately. The other may want to remain in the property, wait for a different time, or arrange financing to keep it.
Ontario law does not reduce this dispute to a simple question of who wants to sell.
The matrimonial home has special legal treatment under Ontario’s Family Law Act. Ownership, possession, equalization, and the eventual sale of the property are related issues, but they are not the same thing.
A spouse should therefore avoid assuming that being on title gives complete control over the home. Equally, matrimonial-home rights do not automatically mean both spouses legally own 50% of the property.
Does It Matter Whose Name Is on Title?
Yes, title matters, but it does not answer every question.
A matrimonial-home dispute may involve several separate concepts:
- Ownership: Who legally owns the property?
- Possession: Who has the right to occupy the home?
- Property value: What is the home worth?
- Equalization: How is its value considered in the spouses’ broader family-property calculations?
- Sale proceeds: What ultimately happens to the money remaining after a sale and payment of relevant liabilities?
Can One Spouse Sell the Matrimonial Home Alone?
A spouse should not assume that sole ownership means they can simply list and transfer the matrimonial home without dealing with the other spouse’s legal rights.
Ontario’s Family Law Act places restrictions on the disposition or encumbrance of an interest in a matrimonial home. Depending on the circumstances, issues may arise concerning the other spouse’s consent, a separation agreement releasing rights, or court authorization.
This means a proposed sale should be considered in light of:
- how title is registered;
- whether both spouses have ownership interests;
- whether the property remains a matrimonial home for the relevant legal purpose;
- any separation agreement or marriage contract;
- any existing court order;
- possession rights; and
- the specific transaction being proposed.
The same caution applies to refinancing or placing additional financing against the property.
A spouse who wants to sell should first understand what legal steps are actually required rather than assuming the other spouse’s signature is irrelevant.
Does Moving Out Mean You Give Up Your Rights?
Moving out does not automatically transfer ownership or resolve the matrimonial-home issues between spouses.
A spouse who leaves the home may still:
- remain a registered owner;
- remain responsible under the mortgage;
- have property rights that must be addressed;
- have an equalization claim; and
- have an interest in how the property is eventually dealt with.
What Can You Do If Your Spouse Won’t Agree to Sell?
When a spouse refuses to sell, court proceedings are not necessarily the first or only option.
The reason for the refusal can matter.
One spouse may genuinely want to keep the property. Another may disagree with the valuation, proposed listing price, timing, real estate agent, repairs, or arrangements for moving out.
Identifying the actual disagreement can make it easier to determine whether a negotiated solution is possible.
What Should You Check Before Taking Legal Action?
Before escalating the dispute, it may help to work through the following steps.
- Confirm ownership. Obtain reliable information showing who is registered on title.
- Review the mortgage. Determine who signed the mortgage, the outstanding balance, payment obligations, and whether there are other secured debts.
- Establish the home’s current value. A professional appraisal or another appropriate valuation may help reduce arguments about an unrealistic sale or buyout figure.
- Review existing agreements. Check any separation agreement, marriage contract, or temporary written arrangement that deals with the home.
- Check court orders. An existing order dealing with possession, preservation of the property, or another related issue may affect the available options.
- Identify the reason for refusing the sale. There is a practical difference between refusing every sale proposal and requesting time to arrange a realistic buyout.
- Track home expenses. Keep records of mortgage payments, taxes, insurance, repairs, condo fees, and other significant property expenses.
- Assess whether a buyout is realistic. A spouse who wants to keep the home may need to establish that appropriate financing and title arrangements can actually be completed.
Can One Spouse Buy Out the Other Instead of Selling?
A buyout may provide an alternative when one spouse wants to keep the matrimonial home.
However, a buyout involves more than agreeing that one spouse will remain in the property.
The spouses usually need to address the home’s value, ownership interest being transferred, financing, mortgage liability, title transfer, and how the transaction relates to the wider property settlement.
Selling the Home
A sale may involve:
- selecting an agent;
- establishing a listing price;
- accepting an offer;
- paying real estate commissions;
- discharging the mortgage;
- paying closing expenses;
- arranging moving dates; and
- determining how the remaining proceeds will be handled.
One Spouse Buying Out the Other
A proposed buyout may involve:
- obtaining an appropriate property valuation;
- agreeing on the financial terms of the transfer;
- determining how the buyout interacts with equalization;
- refinancing the mortgage;
- qualifying for financing;
- removing the departing spouse from applicable mortgage obligations where the lender agrees;
- transferring title; and
- completing the necessary legal documentation.
A spouse cannot assume that a buyout is feasible simply because both parties agree on a price.
Can an Ontario Court Order the Matrimonial Home to Be Sold?
When Might Court Intervention Be Considered?
Court involvement may be considered where problems such as these cannot be resolved through negotiation:
- one spouse refuses to consider reasonable sale arrangements;
- a spouse will not cooperate with listing the property;
- the spouses cannot agree on an agent or listing price;
- one spouse repeatedly interferes with showings or access;
- there are significant mortgage arrears;
- carrying costs are becoming unaffordable;
- necessary repairs or property preservation are being neglected;
- one spouse wants to complete a buyout but the terms remain disputed;
- an exclusive-possession issue affects the proposed sale; or
- the home dispute is preventing resolution of the wider property settlement.
The appropriate response depends on the specific problem.
For example, a dispute about which agent to appoint may require a different solution from a case where mortgage payments have stopped and the property is at financial risk.
Can a Judge Force the Sale of a Matrimonial Home?
A court may have authority to order the sale of property in appropriate circumstances, but the result should not be treated as automatic.
Ontario’s Partition Act states that parties with specified interests in Ontario land may be compelled to make or suffer partition or sale. It also permits an interested person to apply for partition or a court-directed sale where the statutory requirements are met.
A matrimonial home can raise additional family-law considerations.
For example, the spouses may have possession rights under the Family Law Act. There may also be an existing separation agreement or court order affecting occupation or disposition of the property.
The court application may therefore need to address more than the simple question of whether the home should eventually be sold.
Depending on the circumstances, disagreements may also exist about:
- when the property should be listed;
- which agent should be retained;
- how the listing price is determined;
- how price reductions will be handled;
- whether repairs are necessary;
- who can remain in the property pending closing;
- cooperation with showings;
- acceptance of offers; and
- treatment of the net sale proceeds.
A court order dealing with a matrimonial home dispute can therefore require more detailed terms than simply directing a sale.
How Can a Toronto Divorce Lawyer Help?
A Toronto divorce lawyer can help separate the different legal and financial issues surrounding the matrimonial home.
Depending on the circumstances, a lawyer may:
- review how the property is registered;
- assess matrimonial-home possession rights;
- review agreements and existing court orders;
- examine mortgage and carrying-cost issues;
- help obtain or assess appropriate valuation evidence;
- negotiate a listing and sale process;
- negotiate a proposed buyout;
- draft matrimonial-home terms for a separation agreement;
- consider how the property affects equalization;
- address disputes concerning sale proceeds;
- assess whether court relief may be appropriate; and
- bring or respond to an application concerning the property.
Legal advice can also help a spouse avoid treating ownership, possession, sale proceeds, and equalization as if they were one legal issue.
