When separating in Ontario, one of the first actions your family lawyer will take is severing the “joint tenancy” on your matrimonial home, converting it into a “tenancy in common.” This vital step prevents your estranged ex-spouse from automatically inheriting your half of the house if you unexpectedly pass away before the divorce is finalized.
Divorce is a lengthy process in Ontario. Whether you live in Toronto, Kitchener, or Ottawa, resolving equalization, spousal support, and decision-making responsibility can easily take one to two years. During this limbo period, your largest asset-the matrimonial home-carries a massive, hidden legal risk. Most married couples purchase their home as “joint tenants.” In property law, joint tenancy comes with the “right of survivorship.” This means that if one spouse dies, their share of the house automatically transfers to the surviving spouse, completely bypassing any Will.
If you are undergoing a bitter separation, the last thing you want is for your soon-to-be ex-spouse to inherit 100% of the house if you get into a fatal car accident before the divorce papers are signed. ⚠ To protect your children, your new partner, or your estate, your family law firm will immediately file paperwork to “sever” the joint tenancy. By converting the ownership to a “tenancy in common,” you ensure that your 50% share of the home belongs strictly to your estate, to be distributed exactly as you outline in your updated Will.
Step-by-Step Process for Severing Joint Tenancy in Ontario
Severing a joint tenancy is a real estate transaction that directly impacts your family law case. The most powerful aspect of this process is that you can do it entirely unilaterally-you do not need your ex-spouse’s permission, nor do you even need to tell them beforehand.
Step 1: Identifying the Current Title Structure
First, your lawyer must confirm how the property is actually registered. 🔍 Your legal team will pull a Parcel Register from the Ontario Land Registry Office. If the deed says you and your spouse are “Joint Tenants,” the right of survivorship is active, and action must be taken. If it already says “Tenants in Common,” you each own a distinct share (usually 50%), and your estate is already protected.
Step 2: Drafting the Transfer Documents
If severance is required, your lawyer will draft a specific real estate transfer document. Even though no money is changing hands, the paperwork essentially involves you transferring your own interest in the property back to yourself. This legal mechanism breaks the specific unities required for a joint tenancy, instantly converting the ownership structure into a tenancy in common.
Step 3: Registering the Severance on Title
Once the document is signed, your real estate or family lawyer will electronically register the transfer at the local Land Registry Office. 💻 The severance is effective the moment it is officially recorded. At this point, the law requires that your ex-spouse be notified. Your lawyer will send a formal letter to your ex-partner (or their legal counsel) informing them that the joint tenancy has been severed.
Step 4: Updating Your Will and Estate Plan
Severing the joint tenancy is only half the battle. Now that your 50% share of the house is guaranteed to go to your estate, you must have a valid Will in place to dictate who actually receives it. If you sever the tenancy but die without a Will, Ontario’s intestacy laws will dictate the inheritance, which generally still prioritizes your legally married spouse. You must work with an estate lawyer to immediately draft a new Will leaving your assets to your children or a trust.
How Much Does it Cost in Ontario?
Protecting your estate is an incredibly affordable step compared to the massive financial risk of doing nothing. 💰 Here are the standard costs in Ontario:
- Lawyer Fees (Severance): Having a lawyer draft and file the documents to sever a joint tenancy typically costs a flat fee between $400 CAD and $900 CAD.
- Land Registry Fees: The provincial government charges a registration fee of exactly $85.00 CAD to record the transfer.
- Will Updating: Hiring an estate lawyer to draft a new, post-separation Will generally costs between $500 CAD and $1,200 CAD.
How Long Does the Process Take?
This is one of the fastest legal procedures in family law. Once you instruct your lawyer to proceed, the title search, drafting, and electronic registration can all be completed within 3 to 5 business days. Drafting a new Will to complement the severance usually takes 2 to 4 weeks depending on the complexity of your estate.
Joint Tenancy vs. Tenancy in Common
| Ownership Feature | Joint Tenancy | Tenancy in Common |
|---|---|---|
| Right of Survivorship | Yes. The survivor gets 100% of the house. | No. Your share goes to your estate/Will. |
| Divisibility | Undivided whole. Both own 100% together. | Divided shares (usually 50/50). |
| Need Ex’s Consent? | N/A | No. You can sever it unilaterally. |
Frequently Asked Questions (FAQ)
Does severing the tenancy force a sale of the house?
No. Severing the joint tenancy only changes how the title is held in case of death. It does not trigger an automatic sale, nor does it force anyone to move out. You both still have equal possessory rights to live in the matrimonial home.
Does this change how much money I get in the divorce?
No. Converting to a tenancy in common does not impact the Net Family Property (NFP) calculation or the equalization payment. You are still entitled to half the value of the home; this just ensures the half goes to your heirs if you pass away.
Can the bank stop me from doing this?
Generally, no. Severing a joint tenancy does not alter the mortgage or remove anyone’s liability for the debt. The bank’s security interest remains completely unaffected, so lender consent is not typically required.
Will my ex be angry that I did this?
They might be surprised, but experienced family lawyers understand this is standard operating procedure. Your lawyer will explain to their lawyer that it is a mutual protection, as it also protects their estate from going to you if they were to unexpectedly pass away.
Leave a Reply