Your legal options when your spouse or partner won't agree to sell the family home during separation or divorce.
You can force the sale of a jointly-owned home in Ontario — even if your spouse or partner refuses to cooperate. The legal mechanism depends on your relationship status and ownership structure.
Married spouses can apply for a court order for sale under the Family Law Act. Common-law partners and other co-owners must use the Partition Act to force a sale. Both processes require court approval, and judges consider factors like children's housing needs, financial hardship, and whether one party can buy out the other.
Married spouses only (not common-law partners)
Section 9(1)(e) of the Family Law Act allows courts to order the sale of the matrimonial home as part of property division
Typically 6-12 months from filing to sale order
Common-law partners, business partners, family members, or any co-owners of property
The Partition Act gives any co-owner the right to force a sale when co-ownership becomes unworkable
Typically 8-18 months from filing to sale order
The Family Law Act gives judges more discretion to delay or deny a sale if it would harm children or cause undue hardship. The Partition Act strongly presumes in favor of sale — courts rarely deny partition applications unless there's a compelling reason.
While courts generally favor selling property when co-ownership breaks down, judges have discretion to delay or deny a sale in certain circumstances — especially under the Family Law Act.
Courts prioritize stability for children. If forcing a sale would disrupt children's schooling, community ties, or living arrangements, judges may delay the sale until:
If the spouse opposing the sale can prove they would suffer undue financial hardship, courts may delay the sale. Examples include:
If one spouse can afford to buy out the other's interest, courts may order a buyout instead of a sale. This requires:
If the real estate market is severely depressed and selling would result in significant financial loss, courts may delay the sale until market conditions improve. However, this is rare — courts generally prefer to sell and divide proceeds rather than force continued co-ownership.
Even when courts delay a sale, they typically set a specific timeline (e.g., "sale deferred until youngest child turns 18" or "sale deferred for 2 years"). Indefinite delays are extremely rare. Courts also often order the occupying spouse to pay occupation rent or cover all housing expenses during the delay period.
Before going to court, try to negotiate a sale agreement with your spouse/partner. Document all communication attempts (emails, texts, letters). Courts expect you to make reasonable efforts to resolve the issue without litigation.
Get a professional appraisal or comparative market analysis from a licensed appraiser or realtor. You'll need this to prove the home's value and calculate each party's share of proceeds.
Determine which legal pathway applies to your situation (Family Law Act vs. Partition Act). A lawyer will assess your case, explain the process, and help you prepare the necessary court documents.
File the appropriate court documents:
Serve your spouse/partner with the court documents according to Ontario's service rules. They will have an opportunity to respond and oppose the sale (typically 30 days).
Present your case to a judge. Be prepared to explain why a sale is necessary, address any objections raised by your spouse/partner, and provide evidence of property value and ownership.
If the judge grants your application, you'll receive a court order authorizing the sale. The order will specify terms (listing price, realtor selection, distribution of proceeds, etc.).
Work with a realtor to list and sell the home. If your spouse/partner continues to obstruct the sale (refusing showings, sabotaging offers), you can return to court for enforcement orders.
After the sale closes, proceeds are distributed according to the court order. Typically: pay off mortgage and liens, deduct selling costs, divide remaining equity based on ownership shares or equalization calculation.
The entire process typically takes 6-18 months from filing to final sale, depending on court backlogs, whether your spouse contests the application, and how quickly the property sells. Contested cases with multiple court appearances can take longer.
Reviewed by Deepa Tailor, Senior Family Lawyer
Legal Review: This article was reviewed by Deepa Tailor, Senior Family Lawyer, to ensure accuracy regarding property division, partition applications, and forced sales under the Ontario Family Law Act and Partition Act (2026).
Important: This article provides general legal information only and does not constitute legal advice. Every property dispute is unique, and the best legal pathway depends on your specific circumstances. Consult a family lawyer before filing a court application to force a sale.
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Family Law Lawyer | Property Division Specialist
Deepa Tailor is a family law lawyer with extensive experience in property division disputes, forced sales, and partition applications. She helps clients navigate complex property issues when co-ownership breaks down, ensuring their rights are protected and sales proceed efficiently.
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