3. What happens if my spouse sells our matrimonial home prior to separation?

The matrimonial home receives special protection in Ontario. A spouse generally may not sell,

mortgage, or encumber an interest in a matrimonial home without the other spouse’s written

consent or a court order, even if the home is registered in only one spouse’s name.[^7] If a

spouse disposes of the matrimonial home without the required consent, the court may be able to

set aside the transaction, subject to protections for a good-faith purchaser who did not know the

property was a matrimonial home.

If the home has already been sold, the analysis may include:

 whether the non-titled spouse consented;

 where the sale proceeds went;

 whether the proceeds remain traceable;

 whether the sale was for fair market value;

 whether the purchaser was at arm’s length;

 whether the transaction should be attacked or set aside;

 whether a preservation order should be sought over the proceeds; and

 whether the sale affects equalization.

4. What happens if our matrimonial home is registered to my spouse and we are in the

separation process?

If the home is a matrimonial home, both married spouses generally have an equal right to

possess it, regardless of whose name is on title. Title ownership does not, by itself, determine

who may live in the home after separation.

The home may be dealt with by:

 agreement for sale;

 one spouse buying out the other’s interest;

 an interim or final order for exclusive possession;

 a preservation order preventing sale or refinancing;

 equalization of its value; or

 a court-ordered sale in appropriate circumstances.

The matrimonial home is treated differently from many other assets. Its full value on the

valuation date is generally included in net family property, and the marriage-date deduction

normally available for other property does not apply to a matrimonial home in the same way.