Common Law Spouses and Sale of Home
- Shankar Law Office
- 3 hours ago
- 4 min read
Fournier v. Giannousopoulos, 2026 ONSC 2813
Facts
KF and MG were common-law spouses and parents of twin daughters. The family lived in a home on Squires Avenue in Toronto, which was legally owned solely by K. After their separation in November 2024, M remained in the home while K moved out and continued to pay all mortgage, tax, insurance, and utility expenses. K sought an order requiring M to vacate the property and allowing her to sell it because:
She could no longer afford the property.
Her mortgage lender (BMO) would not renew the mortgage, which is due June 1, 2026.
Other lenders had declined refinancing applications.
M refused to cooperate with efforts to sell the home.
M opposed the motion, claiming:
A constructive trust interest in the property.
The parties participated in a joint family venture (JFV).
That selling the property would prejudice his ownership claims.
That he would become homeless if forced to leave.
Issues
Does M’s constructive trust/JFV claim prevent the home from being sold?
If not, when should he be required to vacate?
Should K receive sole carriage (control) of the sale?
Decision
1. Constructive Trust Claim Does Not Prevent Sale
Justice Kraft held that an unresolved constructive trust claim does not automatically prevent a sole legal owner from selling property.
The court relied on prior Ontario decisions holding that where:
One party is the sole registered owner,
The owner is bearing the financial burden,
And the occupant’s equitable claims can be protected through money,
The property may be sold before trial, with the proceeds preserved pending determination of ownership claims.
The judge emphasized that:
K had spent over $76,000 maintaining the property since separation.
She faced a genuine financial crisis.
M’s alleged ownership interest could still be protected by holding the net proceeds in trust.
2. Vacant Possession Granted
The court rejected K’s request that M leave within 14 days as too harsh.
Instead, Markos was ordered to vacate within 45 days, giving him a reasonable opportunity to secure alternative accommodation.
The court also noted that common-law spouses do not enjoy possessory rights to a “matrimonial home” under Ontario’s Family Law Act. Those rights exist only for married spouses.
3. Sole Carriage of Sale Granted
The court granted K complete authority over:
Repairs,
Listing,
Pricing,
Negotiations,
Sale documentation,
Closing.
Justice Kraft found that:
M had repeatedly refused to cooperate regarding the sale.
Evidence suggested he behaved aggressively toward contractors working on the property.
K, as sole legal owner, should not be hindered further in disposing of the property.
Orders
The court ordered that:
M vacate the home within 45 days.
K has sole carriage and control of repairs and sale.
M cooperates with showings and repair work until he leaves.
All net sale proceeds are to be held in trust pending further agreement or court order.
M will bring a motion regarding interim child/spousal support within 4–5 weeks.
K receives the costs of the motion.
Analysis
Key Legal Principle
This case reinforces an important distinction in Ontario family law:
Common-law spouses do not receive the same property rights as married spouses. A common-law partner whose name is not on the title must establish an equitable claim (e.g., constructive trust or unjust enrichment) to obtain an ownership interest.
Significance of the Decision
The court emphasized that a person asserting a constructive trust claim cannot indefinitely block a sale where:
The registered owner is carrying all financial obligations,
The property must be sold for legitimate financial reasons, and
The claimant’s interests can be preserved through the proceeds of sale.
Practical Importance
The decision demonstrates the court’s willingness to:
Prioritize financial reality over unresolved ownership disputes.
Prevent an occupying partner from using possession as leverage.
Protect both parties by converting the disputed asset into a fund held in trust pending trial.
Broader Family Law Lesson
For common-law couples, ownership of a home depends heavily on:
Legal title,
Financial contributions,
Evidence of a joint family venture,
Evidence supporting unjust enrichment or constructive trust claims.
Merely living in a property for years, even while raising children together, does not automatically create ownership rights equivalent to those enjoyed by married spouses.
Bottom Line
Fournier v. Giannousopoulos confirms that a sole legal owner of a home can obtain vacant possession and sell the property despite a pending constructive trust claim by a common-law partner. The appropriate protection for the claimant is generally preservation of the sale proceeds in trust rather than preventing the sale itself.
This is an important decision that is likely to have repercussions in the family law arena. At Shankar Law, we keep abreast of the latest developments in law. We try to use case law principles as the basis of our litigation practise. That takes time, analysis, and effort. We are happy to guide and assist you at any of our four offices in Owen Sound, Port Elgin, Wiarton, and Kincardine. In fact, anywhere in Ontario. We look forward to working with you. Professional legal support is just a call away at 226-256-8054. Our Family Law team is skilled, thorough, and reliable, making the complex seem simple.
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