Hi, my name is Shilpa Mehta and I am a lawyer with the Feldstein Family Law Group. Today I will be discussing with you the issue more than one matrimonial home. Specifically, I will discuss whether a seasonal residence, which was owned by one party prior to the date of marriage, and whether it qualifies as a matrimonial home under the Family Law Act.
The Family Law Act deals with a variety of issues that may become outstanding upon the dissolution of a relationship. One such topic that is dealt with by the Act is property division for both married couples.
The general idea of this legislation is to ensure that both parties equally share in the growth of assets made by both spouses or partners during the time they were together. Assets owned by a married party prior to the date of marriage are not included in the computation of that party`s net worth. The legislation takes into consideration that the other spouse or partner did not contribute to the attainment of these assets. However, the value of a matrimonial home, whether or not it was owned prior to the date of the marriage by either party, cannot be deducted from the computation of the owner’s net family property. The matrimonial home has its own place in the legislation and is treated differently than other property.
In light of the special treatment afforded to the matrimonial home, it is even more important to understand what factors impact whether a seasonal property, such as a cottage by the lake or a condo by the sea, will be treated as the matrimonial home at the end of a relationship. I have recently had to deal with this issue on behalf of clients and I will explain to you what factors are taken into consideration when determining if property constitutes a matrimonial home under the Family Law Act.
Under section 18, subsection (1) of the Act, every property in which a person has an interest at the time of separation, and the property was ordinarily occupied by the person and his or her spouse as their family residence, is considered their matrimonial home.
The wording of the Act anticipates that spouses may have more than one matrimonial home by stating that every property in which a person has an interest may be a matrimonial home. This property also needs to be ordinarily occupied by the person and his or her spouse at the date of separation. The reference to “ordinarily occupied” only makes sense if it is read together with the next part of the definition, that is, “as their family residence.”
According to this definition, there is no condition that requires spouses to occupy the matrimonial home together or concurrently. It simply provides that both spouses must be occupying the home as a “family residence” at the date of separation. Arguably, if a family is using their cottage on weekends during the summer, there is a propensity to characterize the property as a matrimonial home. It is important to note that section 18(1) of the FLA does not mention that the asset (home) must be routinely used for family purposes or as accommodation.
In light of this, a couple may actually have more than one matrimonial home. Again, if a couple also has a summer home, and they have lived in that home during parts of their summer vacations, this home could then be considered a second matrimonial home. The laws with respect to the division of the matrimonial home would apply to this second matrimonial home as well.
If you would like more information on separation agreements for common law or married couples, please visit our website at www.separation.ca. If you would like to schedule a consultation to speak with one of our lawyers about your family matter, please call us at: 905-415-1636.
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