Yes. A matrimonial home in Ontario cannot be sold without the written consent of a non-titled spouse, and when that consent is never provided, the agreement is at an end and the buyers are entitled to their deposit back.
That is what the Ontario Superior Court ruled in Caradonna et al. v. Covach et al., 2025 ONSC 5873. A missing consent signature, plus a $10,000 writ of execution the seller could not clear from title, ended a firm $2.84 million Kitchener deal and sent the $150,000 deposit back to the buyers.
Key takeaways
- If the property is a matrimonial home, the non-titled spouse must consent to the sale directly. A seller's declaration that the spouse "has consented" does not replace the spouse's own signed consent.
- The Family Law Act clause in the standard OREA agreement is a warranty. When the consent line is unsigned, the seller is warranting that spousal consent is not required, and getting that wrong can end the agreement.
- A seller who cannot deliver title clear of a writ of execution cannot force the buyer to close. An undertaking to discharge, without more, may not be enough.
- Verify marital status and matrimonial home status at listing, not in the final week before closing.
- Buyers with cold feet will use every defect you hand them. The consent gap and the writ gave these buyers two independent exits from the deal.
This applies to sellers, buyers, real estate agents, and lawyers handling residential transactions in Ontario, especially where one spouse is not on title.
What happened
By an agreement of purchase and sale dated July 22, 2024, Lora and Alfio Caradonna agreed to buy 74 Paddock Court in Kitchener from Robert Covach for $2,840,000, with a $150,000 deposit paid at signing and closing set for August 26, 2024. The agreement had no conditions.
Mr. Covach was the only seller named on the agreement. The spousal consent in the standard form was not signed, which under paragraph 22 of the OREA form meant the seller was warranting that spousal consent was not necessary under the Family Law Act.
On a pre-closing walkthrough, the buyers discovered water damage and rotting beams in a storage area under the garage and driveway, an area that had been locked on their earlier viewings. A further walkthrough on August 25 turned up more problems: a sump pump that was not working, a disassembled soaker tub, a patio door that would not lock, toilets that were not working, and a fridge ice dispenser that did not work.
Title had a problem too. The buyers' lawyer had requisitioned the removal of a $10,000 writ of execution registered against the seller's name. It was never satisfied or removed, and the buyers' lawyer advised he could not accept a bare undertaking to discharge it without more information.
The sale did not close on August 26. The parties agreed to extend to August 27, then to August 28. On August 22, the seller had signed a statutory declaration stating he was a spouse and that his spouse "has consented to this transaction." That declaration, along with an undertaking about the writ, arrived by email at 6:02 p.m. on August 28 attached to the seller's tender letter, which asserted he was ready, willing, and able to close. A signed consent from the spouse herself was never provided.
The sale did not close on August 28, or at all. The buyers applied for the return of their deposit. The property later resold on February 25, 2025 for $2,790,000, exactly $50,000 less than the Caradonna price.
What the court decided
Justice Hebner ordered the deposit returned, on two independent grounds.
The spousal consent ground. The compact rule is s. 21(1) of the Family Law Act, R.S.O. 1990, c. F.3: no spouse may dispose of an interest in a matrimonial home unless the other spouse joins in the instrument or consents to the transaction, releases their rights by separation agreement, a court order authorizes it, or another property is designated as the matrimonial home.
The chain of reasoning ran like this. The unsigned consent in the agreement signalled that the property was not a matrimonial home and consent was not required. The seller's own August 22 declaration then said the opposite: he was a spouse, and the property was implicitly a matrimonial home. Once that was the case, consent had to come directly from the non-titled spouse. It never did. A second-hand statement that she "has consented" is not her consent. Applying Bergmann v. Burns, where a consent that was never communicated to the buyers meant no binding contract, the court held that one spouse cannot sell the matrimonial home without the other's consent. In the court's words: it is that simple. The agreement was at an end and the deposit had to be returned.
The writ of execution ground. The buyers had contracted for title free of encumbrances, and paragraph 10 of the standard OREA agreement provides that where a valid objection to title is made that the seller is unable or unwilling to remove and the buyer will not waive, the agreement is at an end and the deposit comes back. The $10,000 writ was a valid objection. The buyers' lawyer said in writing that he could not accept an undertaking without more information or comfort that funds were available. None came. An undertaking to discharge, and an incomplete one at that, was not enough. The seller could not close, and on this ground too the deposit had to be returned.
The result: the brokerage holding the deposit was ordered to release the $150,000 to the buyers with interest, and the seller was ordered to pay $10,000 in costs. The court did not need to decide anything about the walkthrough defects, which were left for another day.
Why this matters for Ontario real estate deals
The spousal consent line on the OREA form looks like boilerplate. This case shows it is one of the few clauses that can erase the entire deal.
If you are selling, confirm the matrimonial home question before the property hits the market. A home can be a matrimonial home even when only one spouse is on title. If it is, the non-titled spouse signs the consent, full stop. In this case the seller's side tried to patch the gap with a statutory declaration in the final week, and the court held that nothing short of the spouse's own consent would do. This is exactly the kind of title-and-status review a lawyer runs early when you sell a home in Ontario.
Clear your title problems before closing week. The writ was requisitioned on August 19 and was still on title on August 28. A $10,000 judgment ended up costing the seller a $2.84 million sale, a $50,000 resale shortfall, and a costs award. Writs, old mortgages, and liens take time to discharge, and a buyer who has found problems at the walkthrough will not do you any favours by waiving them.
If you are an agent, treat the consent representation as a warranty, because it is one. Ask directly: is any seller married to a person not on title, and has the property been ordinarily occupied as a family residence? Small drafting mistakes decide cases. One added schedule created a counteroffer and cost sellers $50,000 in Ali v. Patel, and one unsigned consent line helped unwind this $2.84 million sale.
If you are a buyer, the walkthrough is your evidence-gathering moment. The Caradonnas documented real problems, and while the ruling turned on consent and title, defects found at that stage matter, as the buyer who uncovered concealed water damage learned when he recovered $129,595 after closing.
One more distinction worth knowing: these consent protections belong to married spouses. Common-law partners have no matrimonial home rights under the Family Law Act, and their claims to a shared home work very differently, as the $191,000 common-law equity case shows.
Practical checklist
For sellers and listing agents:
- Confirm marital status and matrimonial home status at listing, in writing.
- If the home is or may be a matrimonial home, have the non-titled spouse sign the consent in the agreement itself. Do not rely on declarations, emails, or assurances.
- Order an execution search against every seller name early, and start the discharge process for any writ, lien, or old mortgage well before closing.
- If a consent or title problem surfaces mid-deal, get legal advice the same day. The gap may be fixable before the buyer elects to walk.
For buyers and their lawyers:
- Check how the spousal consent representation is completed and question anything inconsistent with what you know about the sellers.
- If the seller's story about spousal status changes mid-transaction, that is a red flag on the whole agreement.
- Requisition title problems in writing and put the seller on notice of exactly what proof you need before closing.
- Document the pre-closing walkthrough with photos and notes, whatever else is happening in the deal.
Common questions
What is a matrimonial home in Ontario?
Under s. 18 of the Family Law Act, a matrimonial home is a property in which a married spouse has an interest and that the spouses ordinarily occupy as their family residence. A spouse who is not on title still has statutory rights in it, including the right to consent before it is sold or mortgaged.
Does a spouse who isn't on title have to sign when a house is sold in Ontario?
If the property is a matrimonial home, yes. Section 21(1) of the Family Law Act prevents one spouse from disposing of an interest in a matrimonial home unless the other spouse joins in or consents, subject to narrow exceptions like a separation agreement release or a court order. In Caradonna v. Covach, the absence of the spouse's own signed consent meant the agreement was at an end.
What happens if a matrimonial home is sold without spousal consent?
The transaction cannot proceed. In this case, the court held the agreement was at an end, ordered the $150,000 deposit returned to the buyers with interest, and awarded them $10,000 in costs, while the seller resold for $50,000 less. Every case turns on its facts, but the statute leaves little room to argue.
Can a statutory declaration fix a missing spousal consent?
Not on these facts. The seller declared that his spouse "has consented," but the court held consent must come directly from the non-titled spouse, and her signed consent was never provided. A declaration about consent is not the same thing as consent.
Can a buyer refuse to close over a writ of execution on title in Ontario?
Yes, where the buyer contracted for clear title, made a valid objection, and did not waive it. In this case a $10,000 writ the seller could not clear was an independent reason the agreement ended and the deposit came back. A bare or incomplete undertaking to discharge was not enough without information showing funds were available to satisfy it.
Do common-law partners have matrimonial home rights in Ontario?
No. The matrimonial home provisions of the Family Law Act apply to married spouses. A common-law partner has no automatic right to consent to a sale, and their claims to a share of the home rely on trust and unjust enrichment principles instead.
Sources and decision link
Caradonna et al. v. Covach et al., 2025 ONSC 5873. Read the full decision on CanLII: 2025 ONSC 5873.
Statutes cited: Family Law Act, R.S.O. 1990, c. F.3, ss. 18 and 21(1). The decision also discusses Bergmann v. Burns and Zender et al. v. Ball et al. on a seller's obligation to deliver marketable title.
Selling a home where only one spouse is on title? Get a free quote. We confirm the consent question, and clear the title, before either becomes the case.
About the author: Christian Janisse is a licensed Ontario real estate lawyer and the founder of Simplyclose Law Professional Corporation. He acts for buyers, sellers, and lenders on purchases, sales, refinances, and title transfers across Ontario — in person in Windsor and remotely province-wide.