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Ontario legislation grants special status to a married couple’s matrimonial home, making it different from other property. Where only one spouse is on title, some safeguards protect a non-titled spouse’s interest in a matrimonial home. Additionally, spousal consent will be required before any property transactions can take place; if permission is not obtained, a sale of a matrimonial home may not proceed.
Seller Fails to Provide Spousal Consent to Sale of Property
In Caradonna et al. v. Covach et al., the applicants entered into an Agreement of Purchase and Sale with the respondent in which the applicants agreed to purchase the respondent’s property. At the time the agreement was signed, the applicants paid a deposit of $150,000. The sale did not close on the originally scheduled closing date. The parties agreed to two extensions, but the sale still did not close. The purchasers sought the return of their deposit on several grounds, including the claim that the matrimonial consent was not obtained.
The respondent was the only seller named on the agreement. The agreement included a section stating: “Seller warrants that spousal consent is not necessary to this transaction under the provisions of the Family Law Act, RSO 1990, unless the spouse of the Seller has executed the consent hereinafter provided”. The consent was not signed, which indicated that spousal consent was not required. However, the vendor later signed a declaration stating that his spouse had consented to the transaction; however, a signed consent from the respondent’s spouse was never provided to the applicants.
Section 21(1) of the Family Law Act (FLA) states that “no spouse shall dispose of or encumber an interest in a matrimonial home unless
- the other spouse joins in the instrument or consents to the transaction.
- the other spouse has released all rights under this Part by a separation agreement.
- a court order has authorized the transaction or has released the property from the application of this Part.
- the property is not designated by both spouses as a matrimonial home and a designation of another property as a matrimonial home, made by both spouses, is registered and not cancelled.”
Spousal Consent Required for Sale of Matrimonial Home
The purchasers cited a 1982 decision in Bergmann v. Burns. That case was decided under the former Family Law Reform Act; however, the judge noted that it contained a similar provision to the current section 21 of the FLA. In Bergmann, the purchasers sought specific performance of the real estate transaction; however, the spousal consent to the sale of the matrimonial home was not provided before the counteroffer expired. The judge determined that spousal consent must be communicated for a contract to be binding and that without it, there was no binding contract. In Caradonna, the judge determined that the result in Bergmann was consistent with the intent of section 21 of the FLA. The judge emphasized that “one spouse cannot sell the matrimonial home without the other’s consent. It is that simple”. Therefore, if consent from the non-titled spouse is not communicated to the purchasers, the agreement comes to an end, and any deposit would need to be returned to the purchasers.
The respondent referenced Warner v. Ahmadi to support their position. In this case, the vendor’s non-titled spouse obtained a court order that required the proceeds of any sale of property to be held in trust pending the resolution of the parties’ family law dispute. The court authorized the sale of the property as the non-titled spouse’s interests were protected, which enabled the vendor to complete the sale of the property. However, the judge did not believe that the case benefited the respondent, as the court had already authorized the sale. There was no evidence from the non-titled spouse that she had consented to the sale, nor was there any court authorization for the sale.
Weighing the facts, the judge noted that the vendor’s spouse did not sign the consent in the Agreement of Purchase and Sale. Consequently, the presumption is that the property was not a matrimonial home within the meaning of the FLA, and that spousal consent was not required. However, in a later declaration, the vendor stated that he was a spouse and that his spouse consented to the sale. As the judge noted, this implied that the property was a matrimonial home, and therefore consent had to be provided directly by the non-titled spouse. Since it was not provided, the judge concluded that the agreement had come to an end, and the purchaser’s deposit needed to be returned to them.
A Spouse Can Register a Matrimonial Home Designation on Title
Ontario legislation also includes safeguards that enable non-titled spouses to protect their interests in a matrimonial home. A spouse can register a matrimonial home designation on the title, which provides notice to individuals and will prevent any property transactions unless spousal consent is obtained. In Pirayesh-Akbari v. Abaspoor, the husband sought an order cancelling a Designation of Matrimonial Home that the wife placed on property. The property was solely in the husband’s name, and he had purchased it before the parties’ marriage. He claimed that throughout the marriage, he had owned it as an investment property. At the start of the marriage, the husband resided in Ontario. While he sponsored his wife’s immigration to Canada, she preferred to live in Iran. Consequently, the husband returned to Iran to live with her. After their separation, the wife registered a Designation of Matrimonial Home on the property. In response, the husband argued that the property was never used as a matrimonial home. The judge had to decide whether the wife’s designation of the matrimonial home, which was registered on the property, should be cancelled.
Court Can Determine if a Property is a Matrimonial Home
The Ontario Family Law Act (FLA) places a special status on a matrimonial home. Section 18(1) of the FLA defines a matrimonial home 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”. Section 20(1) of the Act also states that one or both spouses may designate a property that is owned by one or both of them as a matrimonial home. Additionally, section 23 permits the court to determine whether a property is a matrimonial home and also to cancel a designation if it is found that a property is not a matrimonial home.
In Manufacturers Life Insurance Co. v. Riviera Farm Holdings Ltd, the court confirmed that the designation of a matrimonial home under the FLA does not grant an interest in land to a non-titled spouse. Although the husband attempted to discuss the matter with the wife to convince her to cancel the Designation of the Matrimonial Home, she refused to engage in the discussion. The judge found the language was clear that the designation of the property could only be cancelled if it was determined the property was not a matrimonial home. Justice Kraft considered the evidence and concluded that the property was not a matrimonial home. Firstly, the parties never occupied the property as their ordinary residence during their marriage. Secondly, when the parties visited Canada, they did not stay in the property but instead rented an Airbnb.
Additionally, the property was rented to tenants during the parties’ marriage. Ultimately, the property was not a “matrimonial home” under the FLA. As a consequence, the judge made an order to cancel the matrimonial home designation that the wife had registered on the title.
Experienced Windsor Family Lawyers Helping You Understand Your Rights To The Matrimonial Home
The team at Johnson Miller Family Lawyers in Windsor recognizes that the treatment of a shared home can become a significant concern when couples separate. To ensure your rights are protected and to gain a comprehensive understanding of your options and how the matrimonial home should be handled, we encourage you to take the next step immediately. Complete our confidential online questionnaire or contact our firm directly at 519.973.1500 to arrange a consultation.
