The matrimonial home is often viewed as sacred ground for divorcing couples and disputes commonly arise over the ownership and possession of the property. In Ontario, special status is given to the matrimonial home due to it often being the most valuable and sentimental asset that a couple or family possesses.
What is a ‘matrimonial home’?
Section 18 of the Ontario Family Law Act defines the matrimonial home: “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 their spouse as their family residence”.
Can there be more than one ‘matrimonial home’?
There can be more than one ‘matrimonial home’ as long as at the date of separation, all of the properties are “ordinarily occupied” by the spouses as the “family residence”. The residence(s) being claimed as the ‘matrimonial home’ must be in the province of Ontario, and can be any type of real estate i.e. a condominium, a detached home, a cottage, a leased property or personal property, such as a boat.
Additional property such as a timeshare, cottage or condominium located in another province are treated like any other real estate asset and do not receive special status.
How do the Courts decide if it’s a ‘matrimonial home’?
The Courts will consider the amount of time spent in the home and the intention of its use; if you spend only a couple of weeks a year at your cottage in Niagara, it is unlikely this will be considered a matrimonial home, however if you spend every weekend in Niagara, the Court may conclude that this is a ‘matrimonial home’, as constant occupancy is not required. The definition can also include homes under construction at the date of separation if the Court concludes that you had an intention to use it as a “family residence”.
Prohibition on sale, mortgage or transfer
Unless there is a marriage contract which waives one spouse’s rights to the matrimonial home, the property may not be sold, mortgaged or transferred without either spouses consent or a court order, even where the title is in one spouse’s name. If one spouse completes a transaction without consent, the court may set aside the transaction as a fraudulent conveyance.
Possession of the matrimonial home post separation
Each spouse has an equal right to possession of the matrimonial home and as a result neither spouse can remove the other from the matrimonial home without a court order or valid agreement i.e. a marriage contract.
If you believe that you should be granted exclusive possession of the matrimonial home, you need to bring a motion before the Court. Exclusive possession is where the Court orders that you can live in the matrimonial, home to the exclusion of your spouse, i.e. they are not permitted to reside there and you are not prohibited from changing the locks. In determining whether to grant this order, the Court will take into account the following factors:
- the best interests of the children affected;
- any existing property-related or support-related court orders;
- the financial position of both spouses;
- any written agreement between the spouses;
- the availability of other suitable and affordable accommodation; and
- any violence committed by a spouse against the other spouse or the children.
If I leave the matrimonial home, do I still have to pay the mortgage and bills?
If there is a joint mortgage, line of credit or any form of financing secured on the property, both spouses remain liable for the debt irrespective of living in the property or not. If one spouse remains in the matrimonial home and takes over all of the joint expenses and potential repairs and ad hoc expenses, they may receive credit in the subsequent property division calculation. It is always best to discuss the implications of these financial decisions as early as possible.
The spouse occupying the home may be asked to pay ‘occupation rent’ which is paid to the spouse not occupying the home as compensation for the spouse’s possession. This is usually calculated as one half of the rent that the home would obtain on the open market. Obligations such as child support or spousal support are taken into account and may offset the occupation rent that would be owed.
If you have any questions regarding the above or require legal representation in respect to family law, division of property, cottage disputes, domestic contracts or separation and divorce, please contact us for an initial consultation.