The splitting up of family property during the breakdown of a marriage can be a difficult and overwhelming process, especially when considering the disposition of the matrimonial home.
The matrimonial home is the designated principal property in which spouses ordinarily resided at the time of separation. In Ontario, up until a couple is legally divorced, legislation grants the matrimonial home special rights, above and beyond ordinary property rights. It is important to note that the unique treatment of a matrimonial home is exclusive to a home shared by married spouses, and not common-law spouses.[1]
It is typical during a divorce proceeding for the matrimonial home to be disposed of either by sale to a third party or through a negotiated spousal buyout.
But which options remain when one spouse wishes to sell the matrimonial home and divide up the net proceeds, and the other spouse wants to stay in the home?
In this scenario, if spouses are unable to come to an agreement, the spouse seeking the sale of the matrimonial home has the option of applying to court to force the sale of the property.
When both spouses are on title to the matrimonial home
If both spouses have either legal or equitable title to the matrimonial home, then they are considered to be “joint tenants” under Ontario property law.[2] The courts have created a test for ordering a forced sale of a matrimonial home for joint tenants through principles outlined in the Partition Act, and caselaw titled “Kaphalakos v. Dayal”.[3] The test for joint tenants is as follows:
- A joint tenant has a right to an order for the sale or partition of land held with another joint tenant;
- A court is required to order the partition or sale unless the opposing party has demonstrated to the court why the order should not be made; and
- The opposing party must show that the party wishing to sell the property has engaged in “malicious, vexatious, or oppressive conduct” related to the sale itself.[4]
The courts have defined what is considered “malicious, vexatious, or oppressive conduct” as when the sale of a matrimonial home would either prejudice the opposing party’s claims under the FLA, or impact the best interests of the spouses’ children.[5]
Some examples of the sale impacting the opposing party’s claims under the FLA include legitimate exclusive possession, or equitable title claims which would be unable to advance in court if the matrimonial home were to be sold.[6]
To demonstrate that the sale of the home would negatively impact the best interests of the spouses’ children, courts have made it clear that “the party opposing the sale must establish a likely negative impact more serious than the inevitable adjustments and disruptions which all families face when parents decide to separate.”[7]
When only one spouse has title to the matrimonial home
When only one spouse is registered on title to the matrimonial home, the Partition Act no longer applies.[8] While an individual with sole ownership of a property is generally entitled to sell their home, section 21 of the Family Law Act prohibits a spouse from selling their matrimonial home without the other spouse’s consent, even if the non-consenting spouse is not registered on title to the property.[9]
In this case, the spouse hoping to sell the matrimonial home may apply to the court under section 23 of the Family Law Act to force a sale of the property.[10] This application places the onus on the non-consenting party to show that they are not “unreasonably withholding consent” of the sale.[11] Similarly, as above, the courts will consider if selling the matrimonial home would cause prejudice to the non-consenting spouse, and will additionally take into account the best interests of the spouses’ children.[12]
Have further questions? Contact our family lawyer.
Jessica Santucci is a Toronto lawyer who joined the family law group at Devry Smith Frank in 2026, with over six years of experience in the field. Jessica has extensive experience in assisting clients with parenting disputes, child and spousal support, property division, and domestic contracts, and has experience resolving matters through negotiation, mediation, and litigation.
Jessica can be reached at jessica.santucci@devrylaw.ca and/or 416-446-3323.
This blog was co-authored by articling student Muskan Agrawal.
This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.
[1] “Common Law Couples: Exclusive Possession of The Home | Devry Smith Frank LLP” (11 December 2018), online: <https://devrylaw.ca/common-law-couples-exclusive-possession-of-the-home/>.
[2] Jarvis v Jarvis, 2023 ONSC 7203 at para 9 [Jarvis].
[3] Monga v Monga, 2024 CanLII 14380 (ON SC) at para 35.
[4] Ibid.
[5] Ibid at para 36.
[6] Hearty, Peter, “CanLII Connects” (8 March 2024), online: Can I force the sale of the matrimonial home in Ontario? <https://canliiconnects.org/en/commentaries/93740>.
[7] Dhaliwal v Dhaliwal, 2020 ONSC 3971 at para 16.
[8] Jarvis, supra note 2 at para 15.
[9] Ibid; Family Law Act, RSO 1990, c F.3, s 21.
[10] Family Law Act, RSO. 1990, c. F.3, s 23.
[11] Jarvis, supra note 2 at para 16.
[12] Ibid; Kim v Lee, 2024 ONSC 4788 at para 47.
