SHOULD YOUR SPOUSE BE ABLE TO MORTGAGE THE HOUSE AND SIGN ON YOUR BEHALF?
If husband and wife are about to separate, the last thing in the world that you would want would be for your spouse to be able to sell or mortgage the house without your consent. That's one of the reasons why we have a Family Law Act in Ontario. However, if you trust your spouse enough to be your attorney for property and you are concerned that you may become gravely ill or suffer a stroke one day, it may be a good idea to authorize your spouse to sign any of the documents necessary to sell or mortgage the matrimonial home.
Family Law Act excerpt:
21. (1) No spouse shall dispose of or encumber an interest in a matrimonial home unless,
(a) the other spouse joins in the instrument or consents to the transaction;
(b) the other spouse has released all rights under this Part by a separation agreement;
(c) a court order has authorized the transaction or has released the property from the application of this Part; or
(d) the property is not designated by both spouses as a matrimonial home and a designation of another property as a matrimonial home, made by both spouses, is registered and not cancelled. R.S.O. 1990, c. F.3, s. 21 (1).
Setting aside transaction
(2) If a spouse disposes of or encumbers an interest in a matrimonial home in contravention of subsection (1), the transaction may be set aside on an application under section 23, unless the person holding the interest or encumbrance at the time of the application acquired it for value, in good faith and without notice, at the time of acquiring it or making an agreement to acquire it, that the property was a matrimonial home. R.S.O. 1990, c. F.3, s. 21 (2).
Proof that property not a matrimonial home
(3) For the purpose of subsection (2), a statement by the person making the disposition or encumbrance,
(a) verifying that he or she is not, or was not, a spouse at the time of the disposition or encumbrance;
(b) verifying that the person is a spouse who is not separated from his or her spouse and that the property is not ordinarily occupied by the spouses as their family residence;
(c) verifying that the person is a spouse who is separated from his or her spouse and that the property was not ordinarily occupied by the spouses, at the time of their separation, as their family residence;
(d) where the property is not designated by both spouses as a matrimonial home, verifying that a designation of another property as a matrimonial home, made by both spouses, is registered and not cancelled; or
(e) verifying that the other spouse has released all rights under this Part by a separation agreement,
shall, unless the person to whom the disposition or encumbrance is made had notice to the contrary, be deemed to be sufficient proof that the property is not a matrimonial home. R.S.O. 1990, c. F.3, s. 21 (3).
Idem, attorney’s personal knowledge
(4) The statement shall be deemed to be sufficient proof that the property is not a matrimonial home if it is made by the attorney of the person making the disposition or encumbrance, on the basis of the attorney’s personal knowledge. R.S.O. 1990, c. F.3, s. 21 (4).
Liens arising by operation of law
(5) This section does not apply to the acquisition of an interest in property by operation of law or to the acquisition of a lien under section 48 of the Legal Aid Services Act, 1998. R.S.O. 1990, c. F.3, s. 21 (5); 1998, c. 26, s. 102.
Call a Lawyer Now to Book an Appointment 905-273-3322
Family Law Act excerpt:
21. (1) No spouse shall dispose of or encumber an interest in a matrimonial home unless,
(a) the other spouse joins in the instrument or consents to the transaction;
(b) the other spouse has released all rights under this Part by a separation agreement;
(c) a court order has authorized the transaction or has released the property from the application of this Part; or
(d) the property is not designated by both spouses as a matrimonial home and a designation of another property as a matrimonial home, made by both spouses, is registered and not cancelled. R.S.O. 1990, c. F.3, s. 21 (1).
Setting aside transaction
(2) If a spouse disposes of or encumbers an interest in a matrimonial home in contravention of subsection (1), the transaction may be set aside on an application under section 23, unless the person holding the interest or encumbrance at the time of the application acquired it for value, in good faith and without notice, at the time of acquiring it or making an agreement to acquire it, that the property was a matrimonial home. R.S.O. 1990, c. F.3, s. 21 (2).
Proof that property not a matrimonial home
(3) For the purpose of subsection (2), a statement by the person making the disposition or encumbrance,
(a) verifying that he or she is not, or was not, a spouse at the time of the disposition or encumbrance;
(b) verifying that the person is a spouse who is not separated from his or her spouse and that the property is not ordinarily occupied by the spouses as their family residence;
(c) verifying that the person is a spouse who is separated from his or her spouse and that the property was not ordinarily occupied by the spouses, at the time of their separation, as their family residence;
(d) where the property is not designated by both spouses as a matrimonial home, verifying that a designation of another property as a matrimonial home, made by both spouses, is registered and not cancelled; or
(e) verifying that the other spouse has released all rights under this Part by a separation agreement,
shall, unless the person to whom the disposition or encumbrance is made had notice to the contrary, be deemed to be sufficient proof that the property is not a matrimonial home. R.S.O. 1990, c. F.3, s. 21 (3).
Idem, attorney’s personal knowledge
(4) The statement shall be deemed to be sufficient proof that the property is not a matrimonial home if it is made by the attorney of the person making the disposition or encumbrance, on the basis of the attorney’s personal knowledge. R.S.O. 1990, c. F.3, s. 21 (4).
Liens arising by operation of law
(5) This section does not apply to the acquisition of an interest in property by operation of law or to the acquisition of a lien under section 48 of the Legal Aid Services Act, 1998. R.S.O. 1990, c. F.3, s. 21 (5); 1998, c. 26, s. 102.
Call a Lawyer Now to Book an Appointment 905-273-3322
