As is the case with most marriages, the matrimonial home is typically the most significant asset shared between the spouses. Not only is the matrimonial home a significant asset, the home also often holds great sentimental value and can often become the most contentious issue between the parties in a divorce/separation proceeding.
Under the Family Law Actof Ontario, which governs many of the issues regarding the matrimonial home, any residential property (or part of a property that is residential) in which both parties have an interest and in which both parties regularly resided in at the time of separation is considered to be a matrimonial home/property. It is important to note that more than one property can be considered a matrimonial home under the law, for example cottages or vacation homes will be categorized as matrimonial homes if the spouses spent any significant amount of time there up until the time of separation. To avoid confusion and conflict regarding the categorization of different properties, both spouses can register any residential properties as matrimonial at a land registry office, in which case any other properties will be automatically excluded from being categorized as matrimonial. Due to the complexity of determining what is, or isn’t, a matrimonial property, it is highly recommended that you obtain a lawyer to help guide you through this process in the case of a divorce or separation proceeding.
Once it is determined whether a property is considered to be matrimonial, it is important to be aware of the rights you have in regard to that property. Even while a separation proceeding is ongoing, one spouse cannot unilaterally exclude the other spouse from the property until the separation is final, a separation agreement addresses the issue, or a Court orders the possession of the property to be given to one party exclusively. When determining whether to grant exclusive possession to one house, a Court will consider a number of relevant factors such as whether any children are affected, the financial position of both spouses, and any prior written agreements, among other things. When children are involved, generally the Court will rule in favor of granting possession to the parent with custody as this would allow the children to adapt to their new family situation in a familiar environment. The matrimonial home also cannot be sold, sublet, rented, or mortgaged unless both spouses’ consent.
For the purposes of property division in a separation, both parties must present their net family worth, which is a sum of their assets (including the matrimonial properties) and debts at the time of separation (excluding inheritances and gifts). Based on this formula, the party with the higher valuation then makes an equalization payment equal to half the difference between the two amounts. It is important to note that matrimonial properties that were inherited or gifted are not exempted from the calculation and must be added as part of the valuation. Finally, if the parties cannot come to an agreement on what to do with the matrimonial home, a Court may agree to an order to partition and sell the property.