Separating from a spouse can begin a lengthy period of negotiation. Decisions about the home, equalization, support and parenting may take months or longer to resolve.
During that time, the way the home is registered on title can create an estate-planning risk that many separated spouses overlook.
Severing the joint tenancy can be an important step in protecting their share of the property.
However, it must be considered alongside Ontario family law, estate law and the circumstances of the separation.
What Does Joint Tenancy Mean?
Joint tenancy is one way that two or more people can own real estate together. Its defining feature is the right of survivorship.
When one joint tenant dies, that person’s interest does not normally become part of their estate.
Instead, the surviving joint tenant automatically acquires the deceased owner’s interest, although this is subject to the registration of a survivorship application.
As the interest generally passes outside the estate, it is typically not included when calculating Ontario Estate Administration Tax, commonly referred to as probate tax.
By contrast, tenants in common each hold a separate ownership interest.
When an owner dies, their share generally becomes part of their estate and may pass to the beneficiaries named in their Will. That ownership interest may also be subject to Ontario Estate Administration Tax as part of the probate process.
This distinction may have little practical importance during a stable marriage but can become critical after separation.
For example, a separated parent may want their share of the home to benefit their children. If the property remains in joint tenancy and that parent dies first, the surviving spouse may receive the entire home. The children may receive nothing from the property through the deceased parent’s estate.
Why Does Joint Tenancy Override a Will?
A will generally controls assets that become part of a person’s estate.
An ownership interest that passes automatically to a surviving joint tenant through the right of survivorship usually does not become part of the deceased person’s estate and therefore is not distributed according to the will.
This means that changing a will alone may not protect a person’s interest in a jointly owned home.
A clause leaving the person’s share to children, siblings, or another beneficiary cannot redirect an interest that has already passed to the surviving owner by operation of law.
Ontario’s succession legislation contains rules that may affect gifts to certain separated spouses under a will. Those rules do not automatically remove the right of survivorship attached to jointly owned property.
Title to the property must therefore be reviewed separately from the will.
What Does It Mean to Sever a Joint Tenancy?
Severing a joint tenancy converts the ownership into a tenancy in common.
Each person continues to own an interest in the property, but the automatic right of survivorship ends.
After severance:
- Each owner holds a distinct share of the property
- One owner’s death does not automatically give their share to the other owner
- The deceased owner’s share may become part of their estate
- That share may be distributed under a valid will, subject to estate administration, and any legal rights or claims available to a surviving spouse or dependent
Severance does not necessarily determine who will ultimately keep the home or how its value will be addressed during the divorce.
Its immediate purpose is to change what happens to the ownership interest if one spouse dies before those issues are resolved.
Can One Spouse Sever the Joint Tenancy Without Agreement?
Ontario law recognizes that a joint tenant may unilaterally take steps to sever the joint tenancy. This is commonly completed through a transfer registered on title, often from the owner to themselves in a manner that changes the form of co-ownership.
In Horne v. Horne Estate, the Ontario Court of Appeal considered a husband who transferred his interest to himself to sever the joint tenancy without his wife’s knowledge or consent.
The court upheld the severance, finding that it did not dispose of the wife’s existing ownership interest in the matrimonial home.
Although unilateral severance may be available, it is not a do-it-yourself process.
A lawyer should review the title, ownership history, separation documents, and any existing court orders before preparing or registering a transfer.
Does Severance Affect the Right to Live in the Matrimonial Home?
Severing the joint tenancy does not remove either spouse from title. It also does not automatically:
- Force the home to be sold
- End either spouse’s right to occupy the home
- Remove a spouse from the mortgage
- Change responsibility for property expenses
- Resolve an equalization claim
- Decide who will eventually receive the property
Under Ontario’s Family Law Act, both married spouses generally have an equal right to possession of the matrimonial home.
This right exists even when only one spouse is registered as an owner.
A separation, title change, or departure from the property does not necessarily eliminate those rights.
When Should Severance Be Considered?
A review should take place promptly when spouses separate, especially when:
- The property is still registered in joint tenancy
- One or both spouses have children from another relationship
- The spouses are involved in a high-conflict separation
- Divorce or property negotiations may take considerable time
- One spouse has significant health concerns
- A will leaves assets to someone other than the separated spouse
- The spouses no longer intend for the survivor to receive the entire property
Waiting until the divorce is finalized can leave an avoidable gap.
Divorce proceedings, negotiations, and even a separation agreement do not necessarily change registered ownership on their own.
What Else Should Be Reviewed After Separation?
Severance should form part of a broader legal and estate-planning review rather than being treated as an isolated title change. That review may include:
- The current parcel register and form of ownership
- Wills and powers of attorney
- Life insurance and registered account beneficiary designations
- Separation agreements and marriage contracts
- Mortgage obligations and property expenses
- Potential equalization and estate claims
- Plans for the eventual sale or transfer of the home
Taking coordinated steps can reduce the risk of further disputes between family members.
Protect Your Property Interests During an Ontario Separation
Howard Nightingale Professional Corporation can help you understand how property ownership, family law, and estate considerations intersect during separation.
Contact us for a consultation to discuss your matrimonial home and determine whether severing the joint tenancy is appropriate for your circumstances.
Your information will always remain private and confidential.