Does my spouse have to consent when I sell my business in Ontario?

Justice Canada notes that some family laws are federal while others are provincial or territorial. This page covers Ontario’s Family Law Act only. The Act’s consent rule is tied to the matrimonial home, not to a business as such, so the question for a seller is whether the sale disposes of or encumbers an interest in a home. Selling the business to a spouse is a different question, covered on another page.

When a business sale can touch a matrimonial home

Section 18(1) makes a matrimonial home of every property in which a person has an interest and that the person and their spouse ordinarily occupy, or occupied at separation, as their family residence. If property that includes the home is normally used for a purpose other than residential, section 18(3) says the matrimonial home is only the part that may reasonably be regarded as necessary to the use and enjoyment of the residence. Under section 18(2), owning shares of a corporation that entitle the owner to occupy a housing unit the corporation owns is deemed an interest in that unit.

Who counts as a spouse

Section 1(1) defines a spouse as either of two persons who are married to each other, or who have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on that clause. Part III, on support, has its own wider definition for that Part. Which definition applies to your situation is a question for a lawyer.

If consent is missing

Under section 21(2), a transaction made against the rule 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, when acquiring it or agreeing to, that the property was a matrimonial home. For that purpose, section 21(3) deems certain statements by the person making the disposition to be sufficient proof that the property is not a matrimonial home, unless the person to whom the disposition is made had notice to the contrary.

Two nearby questions are separate. If a corporation sells its own property, the Business Corporations Act, section 184(3), requires shareholder approval, in accordance with subsections (4) to (8), for a sale, lease or exchange of all or substantially all of it other than in the ordinary course of business; see the shareholder approval page. How a sale affects property division on separation is covered in a separate answer.