Court Cases & Orders

Mother Refused Consent to Sale of Father’s Home Nine Times; Should Court Override Her?

Written by Russell Alexander / (905) 655-6335

As many of you already know, in Ontario a couple’s matrimonial home enjoys special status under the Family Law Act.  If they decide to separate and divorce, it is treated differently than other property.  Regardless of which of them actually owns it (i.e. has title), it cannot be sold or encumbered without both spouses giving their consent.  Furthermore – and especially where there are children involved – the non-titled spouse can even be granted exclusive possession of the home by the court, to the exclusion of the other spouse who technically has sole title to it.

But what if the home needs to be sold, but the non-titled spouse won’t consent?  Often this gives rise to an unfortunate stalemate, as was the scenario in Jarvis v. Jarvis. The court introduced the matter this way:

[1]  For almost seven years, since the parties’ separation in January 2017, the applicant mother has enjoyed de facto exclusive possession of the matrimonial home with the two children of the marriage, ages 15 and 13.  The respondent father is the sole owner and has paid the mortgage instalments, property taxes, insurance and other household expenses.  Shortly after he moved out, and nine times before today’s hearing, he has asked for the mother’s consent to sell the home, to liquidate the equity and ameliorate the parties’ ability to look after the children on an equal economic footing.  The mother has always refused her consent.

The court noted that while the father was a high-earning government lawyer, his current level of debt was “staggering”: Each month he was incurring a deficit of $4,000, primarily because he was carrying two mortgages, paying child and spousal support, servicing $50,000 in credit card debts, and was in arrears with his landlord.  He had borrowed $100,000 from family to help stay afloat.

The court considered the available remedies.  Importantly, this was not a situation where the home was in both names, which would allow the court to invoke the Partition Act to compel a partition and sale.

Rather, it fell under the provisions of the Family Law Act (FLA), where the mother’s consent was required. The exception was where the court concluded her consent was being “unreasonably withheld,” in which case it could authorize the father to sell the home nonetheless.

The court noted there were different legal tests under each legislative scenario, and that there was a “disharmony” in Ontario Family Law.  In some cases it could allow a non-titled spouses like the mother to continue to occupy the home over the objections of the title-holding father, even when he was in dire financial straits and needed the money.

By law, under the FLA it was up to the mother to disprove she was not unreasonably withholding her consent.  But since the best interest of the children are always a prime factor in that assessment, she could raise the potential impact on their wellbeing as an “an obstacle to the sale”, as the court put it.

Which is exactly what the mother had tried to do here.

On nine past occasions the father had asked for the mother’s consent to sell, but she had refused each time.  She persisted in claiming that the children were stressed and anxious over the prospect of having to move from their home.  But this was disingenuous and obstructionist, the court found; in reality it was the mother’s own lack of preparation for an inevitable move that was causing the children’s anxiety.  The court explained:

[17] On the facts of this case, I do not consider the stress imposed on the children to be sufficient to make the mother’s withholding of consent reasonable, or not unreasonable, to follow s. 23 [of the Family Law Act] more literally.  Despite the children being the focus in the case law, the wording of s. 23 clearly requires the court to consider whether the spouse is withholding consent unreasonably. 

[18] The mother filed an affidavit citing the children’s anxiety at the prospect of having to move out of the home.  She related how, in October and November 2023, they started panicking.  In response, she has put them into psychotherapy.  She filed no records, and one has to suspect her motives for using the children in this manner.  The history of the litigation also shows that she professes to be protecting the children’s interests while being the actual cause of their detriment.

[19] During the hearing, I asked the mother repeatedly what steps she had taken from 2017 to prepare her children for the eventuality that they would have to move out of the house, because this evidence was not in her responding affidavit.  She avoided the question and instead spoke at length about the father’s conduct during the marriage and after separation.  I took from this, as I told her, that she had done nothing to prepare herself or the children for transitioning from the matrimonial home.  In the circumstances, I find that her inaction was the true source of the children’s anxiety.  Moreover, I find that her subjecting them to therapy was more likely motivated by a desire to find another obstacle to the father’s need to sell the property than a bona fide act of concern for her children’s welfare.  Psychotherapy is an invasive medical treatment that should not be undertaken lightly.

In the end, the court ordered the home was to be sold. It noted that on policy grounds, the legal test for the husband to sell his solely-owned matrimonial home under the FLA should ideally be the same as would be the case if he held the property jointly with the mother – namely whether there was “malicious, vexatious, or oppressive” motive or conduct by the father who was proposing the sale here.

In this case, there was not, so the sale should proceed. Otherwise the mother, despite being the non-titled party, would essentially hold the home hostage and would have a greater property rights in it, than if she was a joint owner. This would be an “absurd result”, and contrary to the foundational principles of Family Law, which recognizes marriage as an equal partnership.

For the full text of the decision, see:

Jarvis v. Jarvis, 2023 ONSC 7203 (CanLII), <>

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.