Divorce and Your Family Home – What are Your Rights?

11-12 minutes read.

Dealing with the breakdown of marriage can be emotionally and financially challenging, but it is not the point where things simply end. With the breakdown of the marriage, numerous issues arise, and one such issue is the division of property. For most couples, the matrimonial home is the asset with the highest monetary and sentimental value, but how do you divide a physical asset that is embedded deep in the ground? An experienced family lawyer can certainly help. So here are some key pieces of information that you should know when dealing with your matrimonial home(s).

What qualifies as a “Matrimonial Home” in Ontario?

The matrimonial home is not only a property with special emotional and monetary significance, but also afforded special treatment under the law. With the matrimonial home, comes various rights and obligations that are discussed further in this article.

Under section 18(1) of the Family Law Act (herein “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.”

So according to the definition, could any property occupied by the couple as a family residence qualify as their matrimonial home? Section 28(1) of the FLA specifies that “this Part applies to matrimonial homes that are situated in Ontario” which means a condo in Alberta or a beach house in Miami won’t qualify as a matrimonial home, even if the couple spent most of their time at one of these properties.

Is it possible to have more than one Matrimonial Home?

Yes, it is possible to have more than one matrimonial home. For example, if there is a cottage, owned by one or both spouses, that they regularly used as a family during the marriage, the cottage may be considered the parties’ second matrimonial home, and will be subjected to all the rules that apply to the parties’ primary matrimonial home.

This may not be the case for every couple owning multiple properties; therefore, it is important to speak with a family law lawyer who can help you determine whether you have more than one matrimonial home.

Does sharing the Matrimonial Home after separation affect the date of separation?

Not necessarily. After the breakdown of the marriage, the spouses may continue residing in the matrimonial home, including sharing all household expenses such as utilities, mortgage, property taxes etc., without affecting their date of separation, provided, there is evidence to establish that they have been living separate and apart under the same roof. This could include providing proof that they are no longer in an intimate relationship; they no longer represent themselves as a married couple, to their friends, family or the public, among a host of other factors.

After separation, can one spouse evict the other from the Matrimonial Home?

Section 19(1) of the FLA states that both spouses have an equal right to possession of a matrimonial home, meaning, thereby, neither spouse can force the other to vacate the matrimonial home. Similarly, if one spouse has already departed from the matrimonial home, but now wishes to return to the matrimonial home, the occupying spouse cannot stop the other from returning to the matrimonial home, nor can they change the locks to the property. 

Having noted the foregoing, either spouse may seek an order from the Court for exclusive possession of the matrimonial home, pursuant to section 24(1) of the FLA. Your family law lawyer should inform you that this remedy is rarely granted, as it is considered to be a drastic measure, only to be applied in specified circumstances, such as, where there is domestic violence in the home and there are concerns for the safety of the children or the spouse seeking exclusive possession. Before making such an order, the Court will also consider the income and means of the party being removed from the matrimonial home, whether they are entitled to spousal and /or child support and whether they can afford alternative accommodation.

Before deciding whether one party should have exclusive possession of the matrimonial home, the Court will consider the following factors (section 24(3) of the FLA):

• the best interests of the children affected;
• any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;
• 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.

If the Court has granted exclusive possession of the matrimonial home to one spouse, a prudent family law lawyer will discourage the other spouse from attending at the matrimonial home without prior consent of the occupying party or a court order allowing such attendance. The order for exclusive possession is enforceable by the police, and a police officer may arrest a person the police officer believes on reasonable and probable grounds to have contravened an order for exclusive possession, without an arrest warrant.

Buy-out or sale of the Matrimonial Home in Ontario

In the absence of a court order or consent of both spouses, neither spouse can sell or encumber the matrimonial home, irrespective of whether the matrimonial home is owned jointly or owned by just one of them.

In the case of a jointly owned matrimonial home, one spouse may have a deeper connection with the matrimonial home than the other for various reasons and may want to buy out the other party’s interest in the home. Sometimes, both spouses may want one of them to retain the home to provide consistency and stability for their children. With the consent of both parties, the interested spouse may buy-out the interest of the other in the jointly owned matrimonial home, at the current fair market value, or at a price mutually agreeable to the parties.

In the alternative, the parties may sell the matrimonial home and divide the net proceeds of sale, according to their final settlement. To sell the matrimonial home, both spouses must be involved at every stage of the sale of the property.

In the absence of consent from both spouses, the spouse who wishes to sell the matrimonial home after separation, must obtain a court order for the sale of the matrimonial home. Pursuant to sections 2 and 3 of the Partition Act, a person with an interest in land has prima facie right to an order for the partition and sale of the land. Therefore, the court will order the sale of the matrimonial home, unless the spouse opposing the sale is able to show that the sale would prejudice his/her rights under the FLA. At times, if the spouse opposing the sale is occupying the matrimonial home with the children, the court will be cautious of forcing an early sale, as forcing the sale may not be in the best interest of the children. At some point, however, the home must be sold, as both parties have a right to access their respective entitlements arising from the home.

Equalization of Matrimonial Home

When married couples separate, their net family property is equalized. The value of the matrimonial home must be included in the equalization calculation. Equalization is a complex process, and the matrimonial home is given special treatment within this process.

For example, if one party owns the matrimonial home at the date of marriage and that home is sold before the parties’ separation, the value of the home at the date of marriage is deducted from that party’s net family property calculation. However, if the same home continued to be owned by the spouse at the date of separation, the non-owning spouse would be entitled to share the full value of the home, without any deduction for its date of marriage value, when completing the equalization calculation.

Based on the single example, above, you can understand that without access to advice from a skilled family law lawyer, it is nearly impossible to calculate an accurate equalization payout. To ensure that your rights in relation to your most valuable asset – your home(s) –  are appropriately addressed in your property settlement, you must consult with an experienced family law lawyer.

What if there is a marriage contract?

A home which would otherwise qualify as a matrimonial home can be excluded from sharing with a non-owning spouse, and from other provision of the FLA, by way of a marriage contract. A marriage contract is one of the most convoluted, and potentially vulnerable, forms of a domestic contract, therefore, it is extremely important to have your marriage contract drafted by a family law lawyer.

The lawyers at Bair Family Law have extensive experience with divorce, division of property, the matrimonial home and domestic contracts, and can give you advice tailored to your needs. Call 705-720-1090 to book your initial consultation, at a special discounted rate, and our lawyers will be happy to assist you with your family law issues.