Question:
Husband and wife live in a house. It is owned by the father of the husband. They separate and he’s looking to sell.
Is this a matrimonial home? Spousal consent required?
The husband and wife pay all of the expenses.
Answer:
Yes and No.
- Yes
The answer would be “yes” if the father’s wife lived in the house with him at the time of their separation. She would be required to sign the spousal consent. That could have been 10 years ago! You have to ask the question.
2. No
The husband’s wife may very well have an interest and this may indeed be a matrimonial home. But, the husband’s interest is limited to a temporal period of time. He’s a Tenant, so she is entitled to the same rights of “possession” as he would have under the Lease.
This means that the father can sell the property in one of two ways: 1) occupied by Tenants (both of them, the father doesn’t get to interfere with that), or 2) vacant possession (assuming that as a Tenant the son will leave and as a Spouse with possessory rights, she will leave too). The Tenancy arrangement governs. Her rights are restricted to and are “personal as against her own husband” under the Family Law Act.
That’s the hypothetical answer to the exam question.
You have added another little twist, namely that they paid money. That’s not surprising, most Tenants do. However, if there is a side deal that the son and his wife will be entitled to some equitable interest in the property, that would be a separate issue and not covered under the applicable family law.
If there is a contract, then let’s see what it says!
If there is no contract, this is now a very tough case. In rare cases, a remedy might be available under the Law of Restitution or the Law of Trusts. But, let’s be serious, if there’s nothing in writing at all, this is going to be a very, very difficult and challenging undertaking.
As a real estate agent, your job does not call for an investigation of any possible claims. Let them show you a Court Order that specifies this. Your duty stops after you have asked to see the Court Order.
In any event, it doesn’t fall under the Family Law Act consent.
Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com
Spousal Consent and the Father-in-law’s House (Ontario)
Question:
Husband and wife live in a house. It is owned by the father of the husband. They separate and he’s looking to sell.
Is this a matrimonial home? Spousal consent required?
The husband and wife pay all of the expenses.
Answer:
Yes and No.
- Yes
The answer would be “yes” if the father’s wife lived in the house with him at the time of their separation. She would be required to sign the spousal consent. That could have been 10 years ago! You have to ask the question.
2. No
The husband’s wife may very well have an interest and this may indeed be a matrimonial home. But, the husband’s interest is limited to a temporal period of time. He’s a Tenant, so she is entitled to the same rights of “possession” as he would have under the Lease.
This means that the father can sell the property in one of two ways: 1) occupied by Tenants (both of them, the father doesn’t get to interfere with that), or 2) vacant possession (assuming that as a Tenant the son will leave and as a Spouse with possessory rights, she will leave too). The Tenancy arrangement governs. Her rights are restricted to and are “personal as against her own husband” under the Family Law Act.
That’s the hypothetical answer to the exam question.
You have added another little twist, namely that they paid money. That’s not surprising, most Tenants do. However, if there is a side deal that the son and his wife will be entitled to some equitable interest in the property, that would be a separate issue and not covered under the applicable family law.
If there is a contract, then let’s see what it says!
If there is no contract, this is now a very tough case. In rare cases, a remedy might be available under the Law of Restitution or the Law of Trusts. But, let’s be serious, if there’s nothing in writing at all, this is going to be a very, very difficult and challenging undertaking.
As a real estate agent, your job does not call for an investigation of any possible claims. Let them show you a Court Order that specifies this. Your duty stops after you have asked to see the Court Order.
In any event, it doesn’t fall under the Family Law Act consent.
Brian Madigan LL.B., Broker