“In staying the writ of execution, the trial judge referred to provisions of the FLA, in particular ss. 21 and 23. Subsections 21(1),(2) and 23(d) of the FLA provide as follows:
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.
(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.
…
23. The court may, on the application of a spouse or person having an interest in property, by order,
…
(d) direct the setting aside of a transaction disposing of or encumbering an interest in the matrimonial home contrary to subsection 21(1) and the revesting of the interest or any part of it on the conditions that the court considers appropriate.
Subsection 21(1) of the FLA applies to dispositions and encumbrances made by a spouse without the consent of the other spouse.
The term “encumbrance” may have different meanings, depending on the context. As used in the FLA, “encumbrance” has been interpreted by this court to include “a burden on property, a claim, a lien or liability attached to the property”, but to require more than simply incurring a debt or entering into a loan agreement: Bank of Montreal v. Bray (1997), 1997 CanLII 545 (ON CA), 36 O.R. (3d) 99 (C.A.), at pp. 113-114.
It is beyond the scope of this appeal to fully explore the extent of the rights a writ of execution affords a judgment creditor when the judgment debtor holds title to land. It is sufficient to say that the writ provides an enforcement mechanism, binding the land against which it is issued once the sheriff has complied with the statutory obligations listed at s. 136(1) of the Land Titles Act, R.S.O. 1990, c. L.5: Land Titles Act, s. 136(2); Execution Act, R.S.O. 1990, c. E.24, s. 10(1). A writ of execution permits the judgment creditor to seize and sell the property: Execution Act, s. 9(1). While some consider that, from a practical perspective, an execution, in effect, “creates a lien against title to land” (see e.g. Marguerite E. Moore, Title Searching and Conveyancing in Ontario, 7th ed. (Toronto: LexisNexis, 2017), at c.12 (QL)), the lien is not an interest in land per se but rather in the proceeds of sale of the debtor’s interest in such lands: see Ferrier v. Civiero (2001), 2001 CanLII 5158 (ON CA), 147 O.A.C. 196 (C.A.), at para. 8 (dealing with the sheriff’s application for partition of property jointly held); Ferrier v. Wellington (County) Sheriff (2003), 40 C.P.C. (5th) 344 (Ont. S.C.), at para. 45 (upholding an order setting aside a certificate of pending litigation against the same property).”