Why Courts Often Order the Sale of the Matrimonial Home After Separation in Ontario

When Staying Isn’t the Solution: Why Courts Default to Sale in Matrimonial Home Disputes

There’s a particular heartbreak that happens in family law, when two people separate but remain locked in conflict over the home. One of my recent clients was in that very place. She either wanted exclusive possession or to continue living with her ex. But their relationship was toxic, and they weren’t even speaking. She had no income, not due to circumstances, but by choice. He wasn’t willing to leave unless he was freed from financial responsibility toward the home.

This scenario isn’t uncommon. And when courts are asked to intervene, they often do one thing: order the sale of the matrimonial home after separation.

What Exclusive Possession Does and Doesn’t Do

In Ontario, both spouses have an equal right to the matrimonial home, even if only one name is on title. That right doesn’t disappear at separation. However, one spouse can apply for exclusive possession, meaning only they can live in the home temporarily.

But here’s what that order doesn’t do:

• It doesn’t change who owns the home.

• It doesn’t remove either party from the mortgage.

• It doesn’t eliminate risk for the spouse who’s forced to leave.

This means that one person can be living in the home, while the other is still legally and financially bound to it, with no control.

Real Risks When One Spouse Stays Behind

In a past case I reviewed, a court granted exclusive possession to one spouse while the other stayed on title and mortgage. The outcome?

• The occupant neglected the mortgage.

• The home was damaged.

• The mortgage defaulted.

• The non-resident spouse’s credit was ruined.

Because the occupying spouse had no income or assets, there was no way to recover the damage. This kind of outcome is exactly why, when push comes to shove, courts tend to order the sale of the matrimonial home after separation if there’s no viable buyout plan.

Why Courts Default to Sale When No Buyout Is Possible

Let’s return to my client. She hoped to stay in the home indefinitely, but:

• She wasn’t working (by choice)

• She couldn’t buy out her ex

• He refused to stay on the hook financially without access

Courts are understandably reluctant to keep one party locked into a mortgage and tied to the title when they have no control over the property. It’s unfair and risky. So, barring a refinancing or buyout, judges generally move toward the most neutral solution: selling the property.

We’ve seen this in cases like:

• Scanga v. Scanga (2023): Wife sought permanent possession. The court ruled for a sale, protecting both owners’ rights.

• Lalonde v. Agha (2021): Children’s needs were considered, but couldn’t outweigh the financial burden. A sale was ordered.

• Bailey-Lewis v. Lewis (2020): When a buyout fell through, the court ordered a sale and gave control to the applicant.

In all of these, the message was clear: unless there’s a firm and funded plan to separate property interests, courts will order the sale of the matrimonial home after separation.

Temporary Solutions, Long-Term Risks

Yes, courts can build in temporary measures:

• Occupation rent to compensate the non-resident spouse

• Refinancing deadlines

• Indemnity clauses

• Sale triggers

But those only work if the occupant complies and has the means to. If not, the damage falls squarely on the excluded spouse.

When the person in the home can’t afford to stay, sale isn’t just a court preference—it’s often the only way to protect both parties.

Hanging On Can Hurt More Than Letting Go

It’s natural to want to stay in your home after a separation. It feels familiar and grounding, especially when the rest of life is uncertain. But when ownership is shared and finances are tight, staying can lead to deeper loss: of your credit, your sanity, and your future stability.

If no one can refinance or buy the other out, courts are clear: they will order the sale of the matrimonial home after separation, not to punish anyone, but to bring clarity and closure.

Next Steps: If you’re facing a home dispute during separation and need help understanding your legal and financial risks, book a consultation with Alliston Resolutions. We’ll help you evaluate your options and move toward a resolution that’s grounded, clear, and protective of your future.