“The respondent’s position is that s. 23(b)(iii) of the Family Law Act gives this court jurisdiction to dispense with a joint owner’s consent to sell or encumber a matrimonial home where a joint owner is “unreasonably withholding their consent.” The applicant maintains that she is not unreasonably withholding her consent. Rather, she says her refusal to consent is reasonable because she cannot afford to carry another mortgage. Furthermore, she disputes the entitlement of CT Restore Inc. to any funds at this point. She also argues that s. 23(b)(iii) of the Family Law Act does not confer the court with the authority to dispense with the consent of a joint owning spouse. The applicability of s. 23 is limited to situations where the non-consenting spouse is a non-owner.
There is a line of cases that supports the applicant’s position, that s. 23 of the Family Law Act only applies to situations where the non-consenting spouse is also a non-titled spouse. These cases suggest that the purpose of s. 23 is to protect the possessory and other rights of the non-titled spouse. There are some very clear and direct statements to this effect in cases such as: Ohanessian v. Kalisz, 2012 ONSC 7123, at paras. 41-42; Flores v. Flores, 2020 ONSC 5809, at para. 49; and Henry v. Cymbalisty, 1986 CarswellOnt 942, at para. 8, in which Steinberg J. states:
In my view sections 23 and 21(1)(c) can only be invoked so as to limit or cancel the right of possession of a non consenting spouse in a matrimonial home. They cannot be interpreted so as to defeat a spouse’s legal or equitable estate in a matrimonial home, no matter how unjustly or irrational he or she may be behaving in regards to the administration of the property.
When it comes to spouses who jointly own the matrimonial home, the Partition Act, R.S.O. 1990, c. P.4, gives the court jurisdiction to deal with a proposed sale by one spouse where the other objects. I was not directed to any statutory provision that deals directly with the court’s jurisdiction to authorize an encumbrance on a matrimonial home over the objection of a joint owner, unless s. 23 of the Family Law Act can be read as such.
The applicant points out that the cases that the respondent relies upon under s. 23 (such as Norris v. Norris, 2016 ONSC 7077, at para. 37, and El Feky v. Tohamy, 2012 ONSC 2749, at paras. 14, 16, and 19) are not dealing with the court’s jurisdiction to order the sale or encumbrance over the objection of a titled spouse, but with the implementation or mechanic for implementing an existing order or agreement for the sale or encumbrance. I agree that the cases that the respondent relies on do not address directly the jurisdictional issue that the applicant has raised and that the cases she cites squarely do address.
There appears to be a void in the legislation, in that no one has been able to direct me to any statutory provision that grants the court jurisdiction to permit a mortgage to be registered on title to the matrimonial home (or any property) over one of the joint owner’s objection. I will say that, if there was such a provision, and if the reasonableness of the objection is a relevant consideration, I do not consider the applicant’s withholding of consent to be reasonable where she has refused to consider or propose any alternatives that might address her concerns while also solving the problem that the parties face with respect to the matrimonial home renovation and litigation.”