In Ontario, the “matrimonial home” is given special status when it comes to the rules on property division following the breakdown of a marriage. Part 2 of Ontario’s Family Law Act specifically deals with the matrimonial home: what qualifies as one, who has a right to occupy it after separation, and how it is treated in the equalization process when dividing a couple’s property on separation or divorce.

What classifies as a “matrimonial home”?

Section 18(1) of the Family Law Act defines a matrimonial home as:

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.

Here, the term “ordinarily occupied” generally means that the couple used the home in the course of regular family life. If a couple disagrees as to whether a specific property is a matrimonial home, the court looks at how the property was used by the couple (or family), including the amount of time spent at the home

A couple may have more than one matrimonial home

There is no limit to the number of matrimonial homes that a couple can own. If the couple splits time between a home in Toronto, a cottage in Muskoka, and a ski chalet in Collingwood, all three may be considered matrimonial homes. This depends on whether the couple “ordinarily occupied” each of the homes.

To qualify as a matrimonial home the property must be located in Ontario

A chalet in Quebec or a second home in Florida does not classify as a matrimonial home under Ontario’s Family Law Act. This is true even if these properties are “ordinarily occupied” by the couple. Any property that one or more of the spouses own that is located outside of Ontario is treated like all other family property. This means that the regular rules apply to determine who gets possession of the property and how its value is divided on separation or divorce.

A matrimonial home may be owned or leased

It is not necessary for one or both of the spouses to own the property for it to be considered a matrimonial home. If a couple leases a condo, it may still be considered a matrimonial home for the purpose of deciding who gets to remain in the home on separation.

A matrimonial home used for home and business

Where a property is used as a matrimonial home and for business, only the portion that “may reasonably be regarded as necessary to the use and enjoyment of the residence” is considered the matrimonial home.

For example, if a couple lives on an operational farm property, it is likely that only the portion of the property where the home is located (and some surrounding land) will be considered the matrimonial home.

Early use of a matrimonial home may outweigh infrequent use as the relationship deteriorates

When a couple owns more than one matrimonial home the use of the home may change as the couple’s relationship deteriorates. For example, during the early years of a marriage, a couple may split time between their city home and cottage property. Then, as their relationship deteriorates one spouse may stay at the cottage and the other in the city, meaning that the homes are no longer frequently used as family residences. In such circumstances, the courts are likely to find that the extensive use of a property as a matrimonial home during the earlier years of marriage outweighs infrequent use by one spouse as the relationship deteriorates.

Who gets to stay in the matrimonial home?

Under section 29 of the Family Law Act, both spouses have an equal right to possession of the matrimonial home. If the home is owned by one of the spouses, the other spouse still has a personal right of possession to remain in the home. This right extends for the duration of the marriage and may be extended by a court order or separation agreement.

Even if one spouse moves out of the matrimonial home following separation, they still have a right to possession. This means that the spouse who remains in the home cannot unilaterally change the locks to prevent the other spouse from entering the home.

Remember to speak with a knowledgeable lawyer about your rights and obligations before you go changing the locks on your matrimonial home.

One spouse may be granted exclusive possession of the matrimonial home

The courts may make a temporary or final order granting one spouse exclusive possession of a matrimonial home. Such orders are rare. They are generally only made in extreme circumstances such as violence or intolerable living situations.

How is the value of the matrimonial home divided?

The matrimonial home is treated differently than all other property in Ontario family law. When splitting the value of the matrimonial home during the equalization process, the value of the matrimonial home is never deducted from a spouse’s net family property as a date of marriage asset even if that spouse owned the home at the time of the marriage. In effect, this means that each spouse is entitled to one-half of the value of the matrimonial home (instead of just one-half of the value accrued during the marriage).

Can I sell the matrimonial home without my spouse’s consent?

No. Neither spouse can sell or encumber an interest in the matrimonial home without the consent of the other spouse unless there is a court order or the spouse has released their rights to the home as part of a separation agreement. If one spouse sells or encumbers the matrimonial home without the consent of the other spouse, the court may, in some circumstances, set aside the transaction.

The rules relating to matrimonial homes only apply to married couples

The rules on matrimonial homes do not apply to common-law couples, even if the common law couple shares a family home.

Contact the family lawyers at NULaw LLP in Toronto to answer any questions you have about what happens to your matrimonial home after separation or divorce

At NULaw LLP, our family law and divorce lawyers have extensive experience helping our clients understand their rights and obligations when it comes to possession and dividing the value of their matrimonial homes when they are going through a separation or divorce. If you have questions about how the rules apply to your specific situation, contact us at 416-481-5604 or online to book a consultation.

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