Can my spouse sell or mortgage our home without my consent in Ontario?

Not if it is a matrimonial home. Section 21 of Ontario's Family Law Act bars a married spouse from selling, transferring or mortgaging any interest in a matrimonial home without the other spouse's consent, a release in a separation agreement, or a court order, even if only one spouse is on title. A deal made without consent can be set aside unless the buyer or lender acted in good faith, without notice.

How does the consent rule work in Ontario?

Part II of the Family Law Act treats the family home differently from every other asset. Title still decides who owns it, but the law limits what the owner can do with it while the couple are spouses. These rules sit beside the equalization claim described on our property division page, and they apply whether or not a court case has started.

Here is how the rule plays out, step by step:

1. Check whether the property is a matrimonial home. It is one if a spouse has an interest in it and the couple ordinarily occupied it as their family residence, or did at the time of separation (s. 18(1)). Our page on the matrimonial home explains the test, including cottages and second homes.
2. Any sale, transfer or mortgage needs one of four things. The other spouse joins in or consents; the other spouse has released their Part II rights in a separation agreement; a court has authorized the deal or released the property; or both spouses have registered a designation of a different property (s. 21(1)).
3. The person dealing with the home signs a statement. When a home is sold or mortgaged, buyers and lenders rely on a statement by the seller or borrower about their spousal status and the property's use (s. 21(3)). Unless the buyer or lender had notice to the contrary, that statement is enough proof that the property is not a matrimonial home.
4. If consent is refused, a court can step in. The court can authorize the sale or mortgage if the spouse whose consent is needed cannot be found, is not capable of consenting, or is unreasonably withholding consent, and it can attach conditions such as comparable housing (s. 23(b)).
5. If the deal went ahead without consent, it can be challenged. On an application under section 23, the court can set the transaction aside and put the interest back (ss. 21(2) and 23(d)).
6. Bring the application in the right court. Only the Superior Court of Justice can hear Part II claims (s. 17). In Toronto, see our guide to the Superior Court of Justice family court in Toronto.

The four ways a sale or mortgage can be valid

The word "encumber" matters. A mortgage, a refinancing or a home equity line of credit secured on the home is an encumbrance, so the same consent rule applies to borrowing as to selling. Section 21(1) also applies to "an interest" in a matrimonial home, so a spouse who owns half the home jointly cannot sell or mortgage that half without the other spouse.

Tools that protect a spouse who is not on title

The consent rule depends on buyers and lenders knowing the property is a matrimonial home. A spouse who is worried can make that harder to ignore.

• Register a designation. One or both spouses can designate a property as a matrimonial home in Form 1 under R.R.O. 1990, Reg. 367, and register it in the land registry office (s. 20(1) and (3)). A registered designation puts anyone searching title on notice.
• Ask for a preservation order. In an equalization or ownership case, the court can make an interim order restraining the depletion of a spouse's property and for its safekeeping and preservation (s. 12).
• Register the order. Orders under Part II can be registered against land (s. 27). An order affecting real property does not bind someone who acquires an interest in good faith without notice unless it is registered in the proper land registry office (s. 2(11)).
• Keep your right to notice from lenders. A spouse with a right of possession has the same right to redeem, and to notice of enforcement, as the owner spouse when a lender or creditor moves against the home (s. 22(1)). For a mortgage power of sale, the notice rules in sections 33 and 34 of the Mortgages Act apply (s. 22(3)).

Under the Mortgages Act, a lender must give notice of a power of sale to people with an interest in the property, including a person who has given the lender actual notice in writing of their interest (s. 31(1), para. 4). Notice cannot be given until the default has lasted at least 15 days, and the sale cannot happen until at least 35 days after notice (s. 32). Missed payments on a family home are also a debt issue in the equalization; our page on how debts are handled in a property division explains how they are counted.

What changes the answer

• A good-faith buyer or lender. A transaction made without consent cannot be set aside against someone who acquired the interest for value, in good faith and without notice that the property was a matrimonial home (s. 21(2)).
• A false statement. If a spouse falsely swore the property was not a matrimonial home, the court can direct that person, or a later owner who knew the statement was false, to substitute other real property or set aside money or security in its place (s. 24(1)(g)).
• A separation agreement. If you released your Part II rights in a separation agreement, your spouse can deal with the home without you (s. 21(1)(b)). Our page on setting aside a separation agreement covers when that release can be challenged.
• A court-ordered sale. In an equalization case, the court can order property sold to satisfy its order (s. 9(1)(d)(ii)). It can also authorize a sale or mortgage subject to one spouse's exclusive possession (s. 24(1)(f)); see our page on exclusive possession of the matrimonial home.
• A divorce. Part II protects spouses. A designation is cancelled when a divorce is registered or deposited (s. 20(6)(b)), and a non-owner's possession right ends when they cease to be spouses unless an agreement or order says otherwise (s. 19(2)(b)).
• A death. A designation is also cancelled on registration or deposit of proof of a spouse's death (s. 20(6)(d)). Our page on property division when a spouse dies explains what happens next.
• Liens that arise by law. The consent rule does not apply to interests acquired by operation of law, or to a lien under the Legal Aid Services Act, 2020 (s. 21(5)).

A worked example

For example, imagine a hypothetical couple, Jordan and Casey. The family home is in Jordan's name alone, worth $800,000 with a $300,000 mortgage, so the equity is $500,000. Three months after Casey moves out, Jordan takes a $150,000 home equity line of credit from a lender and signs a statement that the property is not a matrimonial home. The lender has no notice to the contrary, and the equity in the home drops to $350,000.

• The property was the family residence at separation, so it remained a matrimonial home and Jordan needed Casey's consent (ss. 18(1) and 21(1)).
• Because the lender acted in good faith for value without notice, the line of credit probably cannot be set aside against it (s. 21(2)).
• Jordan's statement was false, so Casey can ask the court to order Jordan to set aside money or security to stand in place of the home (s. 24(1)(g)).
• For equalization, Jordan's net family property is fixed on the valuation date, here the separation date. The $150,000 borrowed three months later does not reduce it, so the equity counted for the home stays at $500,000. Our guide to how property is divided in Ontario explains the full calculation.

Had Casey registered a designation in Form 1 before the loan, the lender would have had notice from the title search, and the outcome under section 21(2) could have been different.

Common mistakes about selling or mortgaging the home

• Thinking the home stops being protected when you move out. The status is judged at the time of separation (s. 18(1)), so the consent rule still applies after you leave.
• Signing refinancing papers to "help out". Joining in a mortgage is consent under section 21(1)(a), and it can reduce the equity available at the end.
• Assuming the Ontario Court of Justice can stop a sale. Only the Superior Court of Justice can make Part II orders (s. 17).
• Believing the automatic order freezes property. The automatic order under Family Law Rules, rule 8.0.1, deals with service, the information program and financial statements. A separate order is needed to preserve the home.
• Waiting too long. Once a buyer or lender without notice completes the deal, setting it aside becomes much harder. The money claim also has limits; our page on the deadline to claim equalization sets them out.

What to do this week

1. Confirm which properties were the family residence on your separation date.
2. If you are not on title, consider signing and registering a designation of matrimonial home in Form 1.
3. Write to the mortgage lender and any line-of-credit lender, telling them of your right of possession and asking to receive notices about the home.
4. Check for signs of a listing, appraisal or new borrowing, and keep copies of anything you find.
5. Do not sign any consent, transfer or mortgage document until you understand what it gives up.
6. If a sale or mortgage seems imminent, speak to a lawyer about an urgent motion for a preservation order. You can reach us through our contact page for a free consultation.

Frequently asked questions

Does my spouse need my consent if the house is only in their name?

Yes, if it is a matrimonial home. Section 21(1) applies to any spouse who disposes of or encumbers an interest in a matrimonial home, regardless of whose name is on title.

Can my spouse refinance or take a line of credit without me?

Not on a matrimonial home. A mortgage or secured line of credit is an encumbrance, so it needs your consent, a release in a separation agreement, or a court order (s. 21(1)).

What if my spouse refuses to agree to a sale we need?

You can apply under section 23(b) for an order authorizing the sale if your spouse is unreasonably withholding consent, cannot be found, or is not capable of consenting. The court can attach conditions to the order.

Can I sell my half of a jointly owned home?

Not without your spouse's consent while it is a matrimonial home, because section 21(1) applies to "an interest" in the home. The court can order a sale or partition in a property case if you cannot agree.

What if the buyer did not know we were married?

A transaction cannot be set aside against someone who acquired the interest for value, in good faith and without notice (s. 21(2)). Your remedies then lie against your spouse, including an order under section 24(1)(g) if a false statement was made.

Do these rules apply to common-law couples?

No. Part II applies to spouses as defined in section 1(1), meaning married couples (and people in a void or voidable marriage entered in good faith). Common-law partners rely on title and on other claims.

Sources

• Family Law Act, R.S.O. 1990, c. F.3, ss. 2(11), 9, 12, 17 to 24, 27, 55(1)
• R.R.O. 1990, Reg. 367, Designation of Matrimonial Home: Forms
• Mortgages Act, R.S.O. 1990, c. M.40, ss. 31 to 34
• Family Law Rules, O. Reg. 114/99, rule 8.0.1