Can Ontario Courts force the sale of a matrimonial home without a spouse’s consent?

When spouses separate, a major source of conflict is the matrimonial home. Separated spouses commonly disagree on what to do with the matrimonial home upon separation. Most of the time, one spouse wishes to continue residing in it whereas the other prefers to sell it.

What determines the result in cases like these varies depending on who owns the home, the reason behind the conflict that caused the separation, the reason behind the refusal of the sale, financial means…etc.

When a spouse is forced out of their matrimonial home due to domestic violence, restraining orders -or the criminal equivalent, such as peace bonds- may cause even more resistance to the discussion or add fuel to the fire regarding the fate of the matrimonial home.

Fortunately, when a spouse unreasonably refuses to consent to the sale of a matrimonial home, there are helpful provisions in the Family Law Act that allow a spouse to apply to an Ontario court for an order allowing to dispose of the matrimonial home without the consent of the other spouse if the latter is not available or cannot be found, is incapable of giving consent, or, most importantly, is unreasonably withholding consent (s. 23 of the Family Law Act of Ontario). The court will certainly consider other possibilities as an alternative solution to forcing the sale of the matrimonial home; however, if the alternative proposals prove to be impractical or impossible, the court is likely to allow for the unilateral disposition of the home.

A common scenario where such a provision comes into play is when a spouse holds power over another by putting the latter under a peace bond or restraining order because of assault towards the other spouse. The constrained spouse is thus typically under an obligation to avoid contact with their spouse, while the “powerful” spouse stalls the process of determining the plan for the matrimonial home while continuing to live in it through exclusive possession. To remedy these injustices, s. 24 of the Family Law Act offers a judicial procedure that could potentially force the hand of the “powerful” spouse.