In Ontario and perhaps much of the rest of Canada, it must be distinguished who habitually resides in the property. Essentially what is being asked is whether the property is housing a married couple or being used as an investment property for a person who is married. Those are two very different situations. In the former, a married couple, as defined by the Family Law Act, R.S.O. 1990 c. F.3, s. 18(1), lives there. While in the latter, a person who happens to be married, owns a property, but does not live there with their spouse, and instead owns the property as their personal investment. Both these situations have in common that two people are married and that only one may be on title.
Why is all this relevant?
Well, suppose you own a property and live in it with your spouse. You decide it is time to sell or refinance. Your spouse, who is not on title, must provide consent to either one of those two transactions. Whereas, if you were married, but treated the property as your investment, your spouse would not have to consent to you selling or refinancing the property, as they would not have any matrimonial property right claims to the house. It is very important that when considering making any legal decisions about your property, you speak to your real estate Lawyer about whether spousal consent would be required. It is best to have these discussions and considerations before taking the leap, as failure to do so may cause may unnecessarily hurdles and legal complications.
When do either spouse need Independent Legal Advice from another Lawyer?
Any situation that may result in any form of conflict, would require Independent Legal Advice (“ILA”). This process involves having a separate Lawyer sit with the other spouse, to discuss the details of the transaction at hand. This ensures that both parties are freely entering into the transaction, while carefully reviewing the terms and thoroughly understanding what they are signing. In some instances, particularly when two parties are getting separated and/or divorced, Independent Legal Representation (“ILR”) may be required, which defers because both parties are retaining separate Lawyers for the entirety of the transaction and not just specifically for obtaining legal advice.
It is always suggested to seek legal advice of a professional real estate lawyer prior to entering any real estate transactions, whether it be refinancing, transferring, selling, assigning, or otherwise encumbering your property, particularly when you are married.
Natalie Hamzeh, LL.B. LL.M. https://thelawboutique.ca/