Written by: Naa Lansana
You may have heard it said that in Ontario, during separation, the matrimonial home receives special treatment. Among the ways in which a matrimonial home differs from other properties is that the Family Law Act (FLA) grants both married spouses an equal right to possession of the matrimonial home upon separation, regardless of whether a spouse is on title to the property.
The FLA defines the 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.” This definition therefore allows for the existence of more than one matrimonial home. For instance, both the primary residence and cottage of separating married spouses may be considered as matrimonial homes.
Given the right to equal possession of the matrimonial home, even if one person purchased a property alone and provided the downpayment, paid the entire mortgage, and covered other carrying costs for the home, the other spouse, upon separation, has the same right to reside in the property until the parties have reached an agreement on how to deal with the property or a court issues an order regarding same.
It should be noted that parties can choose to waive other special provisions established under the legislation for matrimonial homes, such as the provision that no deductions are permitted for the value of the home at the date of marriage and the provision that no exclusion is provided for the value of the matrimonial home if it was acquired by inheritance or gift from a third party. So for example, the parties can agree that the spouse who brought a matrimonial home into a marriage can obtain a date of marriage deduction for it. However, the provision regarding possessory rights cannot be waived in a marriage contract, and a clause that contradicts the legislation will be deemed to be invalid.
Nonetheless, the legislation does provide authority for a court to order exclusive possession of the matrimonial home for one spouse, even if that spouse is not on title to the property. Factors that courts will take into consideration in determining whether to grant exclusive possession include considerations regarding the best interests of affected children, any existing family property, support orders or other enforceable support obligations, the financial position of one spouse vis-à-vis the other, the existence of any written agreements between the spouses, whether or not there is other suitable and affordable accommodation, and whether any spouse has committed violence against the other spouse or children involved.
In situations where exclusive possession is not pursued, or if a court declines to order it when sought, parties may need to find a way to peacefully co-exist. This is often a significant challenge during separation. Alternatively, they might agree on a timeline for one party to vacate the home, perhaps with some concessions for the departing individual, or decide to sell the property. Even in the latter scenario, the titled spouse would still need to obtain the other party’s consent before listing the home for sale.
Given all the potential difficulties that can arise, separating married spouses would benefit from obtaining pertinent legal advice on how best to navigate these challenges.
