When is a Cottage not a Matrimonial Home? – Egan v. Burton

In this case, the Husband owned a cottage prior to marriage and paid for all the expenses for upkeep and improvements of the cottage. Aside from ordinary housekeeping, the Wife made no contribution to the operation or maintenance of the cottage during their marriage. The Wife applied for a determination of whether the cottage was a second matrimonial home for the purpose of determining the equalization of Net Family Properties.

Pursuant to section 18(1) of the Family Law Act (FLA), “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”. Jurisprudence has determined that parties can have more than one matrimonial home.

In Ledrew v. Ledrew, a headnote written by Professor James G. MacLeod poses two questions that emerge from decided cases, are consistent with the language of section 18 of the FLA,and are necessary when determining whether a residence constitutes a second matrimonial home: Is the property ordinarily used by the spouses? If so, is it used as a family residence?

In answering these questions, Justice Ray determined that the evidence in this case clearly showed that the cottage was ordinarily used by the parties when they were spouses.

However, Justice Ray stressed that the second question concerning ‘family residence’ must mean something more than two spouses using the cottage. Justice Ray held that evidence of the intention of the parties at the time of their use of the residence must be part of the analysis:

“To do otherwise would be to undermine the purpose of the section which is remedial and intended to achieve a fair result where the parties have treated a cottage or second home as a family residence with both parties contributing in one way or the other as one would expect of a family home — which was registered only in the name of one of the parties — and after separation for the other party to be told you have no interest.”

While the parties annually moved to the cottage for the summer months, the Wife treated the cottage very differently from the matrimonial home. The Wife never treated the cottage as a family residence and made no contribution to the operation or maintenance of the cottage. Therefore, Justice Ray held that the cottage was not a second matrimonial home.

*It is important to note that this case is unique in that prior jurisprudence has held that a cottage is a matrimonial home where one of the spouses only used it seasonally or on special occasions.

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