September 30, 2023

In some marriages, the spouses might determine to purchase a matrimonial residence and put themselves each on title.  In others – for causes of their very own – solely certainly one of them might have authorized title to the house they share.  In both state of affairs, the Ontario Household Regulation Act (FLA) provides the matrimonial residence particular standing, and accounts for it as a part of the equalization calculation if the couple decides to separate.  Because of this even the non-titled partner can attain sure rights to share within the residence’s worth up till separation. 

However as one divorcing couple discovered not too long ago, issues is usually a little unclear when solely certainly one of them is on title, however the worth of the matrimonial residence has skyrocketed whereas they’ve been untangling their relationship.  In a noteworthy latest choice, the Ontario Court docket of Attraction addresses this exact state of affairs, and clarifies the rights of the non-titled partner in reference to: 

  • His or her proper to share within the worth of a matrimonial residence previous to separation, as distinct from:
  • Any potential proper to share within the post-separation improve in a matrimonial residence’s worth.

The couple had married in 2014.  They purchased a home at the moment, and put title within the husband’s title solely.  They separated in November 2019 at a degree the place the house was price $672,500.

Nonetheless, they continued to stay collectively underneath the identical roof till Might of 2020.   A number of months later, in September 2020, the house was bought for $860,000.

The previous couple disagreed on whether or not the spouse had the appropriate to share within the improve within the worth of the matrimonial residence that occurred after their separation date – which was about $187,500.  At trial, the decide held this quantity was to be divided equally, primarily based on the notion that the husband was holding the house in belief for each of them.  The spouse had given proof of her perception that “she was at all times promised and at all times advised that they had been shopping for a home collectively and that she can be an equal proprietor”, which she thought-about “to be a type of safety within the occasion the wedding broke down.”

The Ontario Court docket of Attraction overturned the trial decide’s ruling.  The husband, as the only title-holder, was entitled to the total post-separation improve within the residence’s worth, being your entire $187,5000. 

The Attraction Court docket reasoned that the spouse had made no fee towards the acquisition worth of the house in any respect, and whereas she wished to be “on title”, she didn’t wish to contribute to, or be liable for, the mortgage.  The husband had purchased the property in his sole title after a lawyer suggested them that the financial institution wouldn’t permit the spouse on title if she was not contributing to the mortgage. All the cash got here from the husband and his household.

The Court docket identified that upon separation, any marriage-related rights the spouse may need to the worth of the matrimonial previous to the separation date had been addressed underneath the Ontario FLA. That laws has built-in gadgets and protections for addressing any monetary unfairness she would possibly expertise as a result of marriage breakdown. (And on this case the spouse admitted she couldn’t make any claims for unequal division primarily based on unfairness.  The court docket additionally discovered she had no claims primarily based on a constructive belief).

So underneath the FLA the spouse had sure rights to the house pre-separation; however after that date, it was a special story. 

The trial decide had wrongly relied on the spouse’s so-called “cheap expectations” to present her a share of the $187,500, the Attraction Court docket dominated.  The decide had additionally misapplied the take a look at for what is named “proprietary estoppel”, which required the spouse to indicate that: 1) a illustration or assurance was made to her, main her to count on some proper or profit within the residence; 2) she moderately relied on the expectation by doing or refraining to do one thing; and three) she suffered a detriment in consequence, and it could unfair or unjust for the husband to return on his phrase.

None of those parts of the take a look at had been met, on the information.  Specifically, the husband had made no illustration to the spouse about sharing any a part of the $187,5000 improve within the residence’s worth after separation.  

The Court docket of Attraction dismissed the spouse’s declare, reiterating that her “equalization entitlements underneath the FLA already account for the worth of the matrimonial residence, to which she made no financial contribution, as much as the date of the events’ separation.”

For the total textual content of the choice, see:

Madi v. King, 2023 ONCA 443 (CanLII), <>