Understanding Rights to the Matrimonial Home in Ontario
One of the most emotionally charged and legally complex issues in Ontario family law is deciding who gets to stay in the matrimonial home after separation. Since the home is often the couple’s most valuable asset, it’s no surprise that disputes over its possession, sale, and value are common.
This post explains the legal principles surrounding the right to remain in the matrimonial home, the right of first refusal, and the ability to force the sale of the property under Ontario law.
What Is the Matrimonial Home?
In Ontario, the matrimonial home is defined as the residence that was ordinarily occupied by both spouses at the time of separation. Most commonly, it is jointly owned by the spouses—usually as joint tenants, though some own it as tenants-in-common.
Who Gets to Stay in the Home After Separation?
When a marriage ends, one spouse may wish to stay in the matrimonial home—especially when children are involved. This often leads to discussions about buying out the other spouse’s interest rather than selling the home on the open market.
This situation brings up the frequently misunderstood concept of a “right of first refusal.”
What Is the Right of First Refusal in Divorce?
The right of first refusal in family law refers to one spouse having the opportunity to buy the home before it is listed publicly. However, this right is not automatic.
To exercise a right of first refusal:
- The other spouse must agree to sell their interest
- The price must be agreed upon by both parties
If either condition isn’t met, the right cannot be enforced.
Can One Spouse Be Granted a Right of First Refusal?
The Court of Appeal in Ontario has made it clear: there is no legal right of first refusal unless both spouses voluntarily agree.
In Martin v. Martin, 1992 CanLII 7402 (ON CA), the Court overturned a motion judge’s order granting a husband the right of first refusal. The Court emphasized that the Family Law Act does not give either spouse special rights to purchase the home. Once the home is ordered to be sold, both spouses are entitled to fair market value and may compete as buyers if they wish.
This reasoning was grounded in the earlier case of Dibattista v. Menecola, where the Court stated:
“Neither party can be given a right of first refusal. Both parties are free to bid at such sale and can be expected to act to protect their investment.”
Granting one spouse the exclusive right to buy the property, the Court noted, would “distort the market” and potentially harm the financial interests of the other.
Can One Spouse Force the Sale of the Matrimonial Home?
Yes—if the spouses cannot agree on what to do with the home, either party may bring an application under the Ontario Partition Act.
Section 2 of the Partition Act states:
Any person with an interest in land held in joint tenancy or tenancy in common may apply to the court for an order for partition or sale.
The presumption is in favour of selling the property. However, the court may refuse to grant the sale if:
- It would prejudice the rights of the opposing spouse under the Family Law Act
- The application is brought with malicious, vexatious, or oppressive intent
The spouse resisting the sale bears the burden of proving such intent (see: Latcham v. Latcham, 2002 CanLII 44960 (ON CA); Davis v. Davis, 1953 CanLII 148 (ONCA)).
Does an Ongoing Equalization Dispute Prevent the Sale?
No. Courts have consistently held that unresolved equalization claims are not enough to prevent the sale of the matrimonial home.
In Silva v. Silva, 1990 CanLII 6718 (ON CA), the husband opposed the sale, claiming he needed to fund his purchase of the home with an anticipated equalization award. The Court disagreed, ruling that holding the property “hostage” was more prejudicial to the other spouse. The anticipated equalization award was not a sufficient reason to delay the sale
Key Takeaways
✅ There is no automatic right of first refusal—both spouses can bid on the home once it is listed for sale.
✅ Either spouse can apply to force the sale under the Partition Act, unless the resisting spouse can prove malicious or prejudicial intent.
✅ Unresolved equalization issues do not prevent a court from ordering the home to be sold.
Final Thoughts
Disputes over who gets to stay in the matrimonial home can be emotionally and financially difficult. While it’s natural to want to stay in the family residence, Ontario law emphasizes fairness, market value, and shared ownership rights.
If you’re navigating a separation and concerned about your rights to the home, speak to a family lawyer in Ontario who can help you protect your interests and understand your legal options.