This case deals with determining whether another home of a married couple, namely the cottage could be considered a matrimonial home at the date of separation. The cottage was registered in the Husband’s name and was an inheritance from his Mother.
The issue in this case is if there is a finding that the cottage is a matrimonial home, then the Husband could not exclude the cottage from his net family property. This would effectively mean that the married couple get to equally share the value of the matrimonial home. Of course the Husband argued that the cottage was not a matrimonial home and since it was an inheritance he would be able to exclude it from his net family property.
The decision has reinforced the well-known idea that parties may have more than one matrimonial home. According to section 18(1) of the Ontario Family Law Act (“FLA”) the definition of a matrimonial home includes:
Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.
The Wife argued that the family used the cottage during the winter frequently. For the last four years of their marriage, the Husband spent more time at the cottage than at home. In comparison, the Husband stated that his Wife was disinterested in the cottage and that for the last two years of their marriage she hardly went to the cottage. As the marriage deteriorated, the Husband spent more time at the cottage.
The Court decided that the cottage was extensively used by the entire family from the date of marriage and on a going forward basis. The cottage was renovated by both parties through joint funds and joint labour. The family had spent the last two holidays leading up to the date of separation at the cottage. The Court made it patently clear that just because the Wife did not spend as much time as the Husband at the cottage because she had an inflexible work schedule, this does not override the fact that the parties and the children were at the cottage together. The important point is that there was family use that occurred up until the date of separation.
The Court clarified that under section 18(1) of the FLA, 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 that counsel be reminded that section 18(1) of the FLA does not mention that the asset (home) must be habitually used for family purposes or as accommodation.
There are situations where the Court is trying to determine whether there has been a change in user enough to alter the classification of the residence. In such situations, the Court should consider the following:
- The Court should be given a time frame within which to decide whether the change in user has occurred;
- The failure to use the property as a residence should be viewed in the context of an ordinary user, specifically look at whether in the past the residence was ordinarily used;
- Has the user been altered since it was previously occupied; and
- If the user is altered, is the difference sufficient to justify changing the characterization of the property?
Accordingly, the Court decided that the cottage was a matrimonial home at the date of separation. The Court made a point of saying that if a cottage is used on weekends during the summer, and a couple separate in the winter, and there is a lack of use during the winter, this does not negate the property as a matrimonial home.