How an Ontario Divorce/Separation Affects the Matrimonial Home

Protect Your Home at the End of Your Marriage

The matrimonial home is afforded special treatment under the Family Law Act (FLA). Part 2 of the FLA deals entirely with the matrimonial home: what it is, how it is treated in the equalization process, and who has a right to possess it. For many couples, the matrimonial home represents the largest and most significant asset, and it is also a place of great emotional and personal significance. It is important that couples properly understand how this home is treated under the law.

What Qualifies as a “Matrimonial Home”?

Section 18(1) of the FLA defines a matrimonial home as every property in which either spouse has an interest and which is currently, or was at the time of separation, “ordinarily occupied by the person and his or her spouse as their family residence.” Under this definition, more than one home can qualify as a matrimonial home. If the parties have a cottage that they also use regularly as a family, and were using at the time of separation, the cottage will be a second matrimonial home. But if the cottage was for the most part used only by one of the spouses, it may not be considered a matrimonial home for the purposes of the Act.

Section 28(1) specifies that the provisions regarding matrimonial homes apply only to property in Ontario. Therefore, any family homes located outside the province will not be given special treatment as matrimonial homes, and will be treated like all other family property.

Couples can designate a home as their matrimonial home and register that designation with the land registry office. If the designation is made by both spouses, any other home that would be considered a matrimonial home under the s. 18 definition then ceases to be a matrimonial home. If the designation is made by only one spouse, other properties being used as matrimonial homes will continue to be considered matrimonial homes. One or both spouses can later cancel a matrimonial home designation. If both spouses cancel the designation, the s. 18 definition of matrimonial home applies again, and any property that had ceased to be a matrimonial home at the time of designation will again be considered a matrimonial home, provided it continues to meet the s. 18 definition.

If the matrimonial home is located on land that is used for a purpose other than residential (for example, farmland), or the family runs a business from their home, only that portion of the property that “may reasonably be regarded as necessary to the use and enjoyment of the residence” can be considered the matrimonial home (FLA s. 18(3)).

If one spouse is the majority shareholder in a corporation that holds the title of a residential property, the spouse is considered to own that home for the purposes of the FLA.

Sometimes in the time leading up to separation, as a couple’s relationship is deteriorating, couples with more than one family home will find themselves spending increasing amounts of time in separate residences. One spouse may choose to spend the majority of her time at the cottage or at a family condo, while the other spouse avoids that property and remains in the home. At the time of official separation, then, it may look like these second family properties are being used only by one spouse, and are not being occupied as a family residence (and therefore not “matrimonial homes”). However, a 2009 Ontario Superior Court case found that extensive use of a property as a family home during the earlier years of a marriage can outweigh infrequent use by one of the spouses while the relationship is deteriorating.

The Matrimonial Home & Property Division

In Ontario, the matrimonial home is treated differently than all other assets under the equalization process. Its value is never deducted from a spouse’s net family property (NFP) as a date of marriage asset, even if that spouse did own the property at the time of marriage. But the home’s value is always included in the valuation date assets of the spouse who owns the home (or divided between the two spouses, if title is held jointly). This has the effect of making the home-owning spouse’s NFP substantially higher than it would be if the home were deducted as a date of marriage asset. (See our article: Equalization and How it Is Calculated for more information).

Remember that under the s. 18 definition of a matrimonial home, only a home ordinarily occupied as a family residence at the time of separation constitutes a matrimonial home for the purposes of the FLA. Homes that once were the matrimonial home, for example when parties first married, but are not at the valuation date, are accorded no special treatment under the FLA. Their value will be included in the date of marriage assets.

Protection Given to the Matrimonial Home

Neither spouse can sell or encumber an interest in a matrimonial home, except by court order, unless the other spouse has consented or released their rights to the home in a separation agreement. If one spouse does “alienate” the family home in this way, the court can set aside the transaction upon application of the other spouse. This is the case unless the person who purchased the house did so in good faith and was not aware the home was a matrimonial home (FLA s. 21(2)).

Possession of the Matrimonial Home

Ownership of the home is not related to the right to possess it. Section 29(1) of the FLA states that both spouses have an equal right to possession of the matrimonial home. Where the home is owned by one of the spouses, the second spouse’s right of possession is a personal right against the first spouse, and lasts for the duration of the marriage. A court order or separation agreement can extend that right.

Either spouse can apply under s. 24(1) for exclusive possession of the home, even if that spouse does not hold legal title to the home. Courts can grant such an order, as either a temporary or final order. However, courts will rarely make such an order, even on a temporary basis, because it is a very drastic measure, requiring a spouse to vacate his or her own home and find other accommodation. Usually only in extreme circumstances, such as violence, an intolerable living situation, and/or a spouse who cannot afford other accommodation, will the courts consider an order for exclusive possession.

Section 24(3) indicates the criteria that a court will consider in making an order for exclusive possession:

  • The best interests of the children affected;
  • Any existing orders under Part I (Family Property) and any existing support orders;
  • The financial position of both spouses;
  • Any written agreement between the parties;
  • The availability of other suitable and affordable accommodation; and
  • Any violence committed by a spouse against the other spouse or the children.

In considering the best interests of the child, courts as per s. 24(4) will consider possible disruptive effects of a move on the child, and the child’s own views and preferences, if those can be ascertained. In past cases, courts have also considered other factors, such as psychological strain resulting from living with daily friction between parents.

How will you home be affected by a divorce or separation? Ask our Ontario family law lawyers at Feldstein Family Law Group P.C. Call (905) 581-7222 today!

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