What you can and can’t do with family home after you separate
What qualifies as a matrimonial home, and which spouse has the right to live there?
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Your family home is where you and your family can rest, enjoy each other’s company and create memories. But what happens to this special place when a couple decides to separate and, ultimately, divorce?
How does the law view the family home, and how does its value come into play when determining how a family’s assets are to be divided following separation?
What is a ‘matrimonial home’?
Section 18 of the Family Law Act provides this definition: “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.”
To qualify as a matrimonial home, the property must be located in Ontario. This was confirmed in the Ontario Superior Court of Justice case Potter v Boston, decided in 2014, where the court clarified that the relevant section of the Family Law Act applied only to matrimonial homes situated in Ontario. Therefore, properties outside Ontario can never be a matrimonial home as defined in the legislation.
However, the property may be owned or leased. For example, a leased condo may be considered a matrimonial home.
A couple may have more than one matrimonial home. For example, if the couple split their time between a home in the city and a cottage, both may be considered matrimonial homes. The test for determining what properties classify as a matrimonial home is whether the property was ordinarily occupied by the couple in the course of their regular family life.
Couples may also designate a property as their matrimonial home and register that designation with the land registry office. If both spouses make the designation, the property in question is deemed to be their matrimonial home. If the designation is made by only one spouse, any other properties that are ordinarily occupied by the couple may still be considered to be matrimonial homes. One or both spouses can later cancel a matrimonial home designation.
If the matrimonial home in question was also used to operate a business, only the portion that “may reasonably be regarded as necessary to the use and enjoyment of the residence” will be considered the matrimonial home. This is usually the case when couples live on an operational farm property.
Importantly, this definition of a matrimonial home and the associated law applies only to property ordinarily occupied by a married couple. Common-law couples do not share these same rights.
What generally happens upon separation?
Following separation, what happens to the home that the parties ordinarily resided in? In Ontario, the matrimonial home has a special status under the Family Law Act – regardless of ownership, both spouses have an equal right to remain in the home after separation, until a court orders otherwise. This often means that neither party can change the locks to prevent the other spouse from accessing the property, regardless of whether the other spouse moved out of the home following separation.
The special status given to a matrimonial home also prevents either party from selling the property without the consent of their former spouse, or court order. If a spouse does try to sell the home, the transaction may be set aside by a court. Similar principles apply when a spouse tries to encumber the home without the knowledge or consent of the other spouse.
Exclusive possession
In some circumstances, a separating couple finds that it is intolerable for both of them to remain in the matrimonial home. In these cases, either party can apply for exclusive possession of the home. In seeking this relief, the moving party is essentially asking the court to force their former spouse out of the home.
Either spouse can apply for exclusive possession of the home, even if that spouse does not hold legal title to the home.
In coming to a decision, judges must consider the following factors:
- The best interests of the children affected;
- Any existing orders under Part I (Family Property) and any existing support orders;
- The financial position of the 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 children.
The moving party bears the onus of presenting evidence to show that continued shared use of the home is a practical impossibility, or that the well-being of the children is threatened.
Given the severity of this kind of relief, orders for exclusive possession of the matrimonial home are rare and are generally made only in extreme circumstances, such as in situations of family violence.
How is the matrimonial home divided?
In Ontario, married spouses are legally entitled to a division of the property that they amassed together during their marriage.
Under this equalization process, the matrimonial home is treated differently than all other assets. Unlike all other assets owned at the date of marriage, the value of the matrimonial home is not deducted as a date-of-marriage asset, even if the property was owned at the time of marriage, unless the matrimonial home existed at the date of marriage but no longer exists at the date of separation; in that case, the date-of-marriage value will be deducted.
Ownership still matters. If solely owned, only the date of separation value will be equalized. If title is held jointly, then both spouses are entitled to a division of post-separation current value of the home.
Michael J. Stangarone, Partner, and Juanita Valencia, Associate, exclusively practice family law at Toronto-based MacDonald & Partners LLP.
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