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What will happen to our Matrimonial Home?

What is a matrimonial home?

A matrimonial home is any 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 parties as their family residence. Shortly, a matrimonial home is a dwelling in which both you and your spouse have resided.

Who owns the matrimonial home?

The property law regime in Ontario, outlined in the Family Law Act, defines a matrimonial home whereby both spouses have an equal right to possession, even when one spouse is not in title as the official owner of the property. This means, even if one spouse purchased the home as the owner and has an ownership interest, the other spouse will have an equal right to possess the home on dissolution of a marriage. This limits the title owner’s powers with respect to the alienation of the property i.e. you are not able to sell the property without your spouse’s consent; and you are not able to ask your spouse to vacate the property. Both spouses have an equal right to live in the home until a resolution has been reached. You are also obligated to share the proceeds of the sale of the home equally, even if only one spouse is on title or is the one paying the mortgage.

How can you become the party who lives in the home?

The courts have many ancillary powers and can grant you an order for either exclusive or a time limited possession of a matrimonial home. In deciding who ultimately possesses this property, the courts will consider:

  1. The best interests of the children affected. Here the courts will evaluate the disruptive effects of the move on the child, as well as the child’s preferences;
  2. Whether there are already court orders mandating the possession of the home, the custody of the children, or any other spousal support obligations already in place;
  3. The financial position of the spouses;
  4. Any written agreement between the parties. You cannot contract out of your right to possess a matrimonial home in a marriage contract, however it is possible in a separation agreement;
  5. The availability of other suitable and affordable accommodation; and
  6. Any violence committed by a spouse against other spouse or children.

What rights do spouses in common-law partnerships have?

In Ontario, common law spouses do not have the same rights to equal division of the matrimonial home nor the assets amassed during the relationship. You can however, seek a remedy to receive compensation for contributions you made with your time, or assets, that enabled your partner to accumulate property or increase the value of the matrimonial home. To receive any interest in the property, you must prove there is a constructive trust. This means, the person holding title to the property has an equitable duty to compensate the other spouse, because the title-holder unfairly benefited from the contributions of the spouse who is now left without a property to his/her name. The courts must be convinced that:

  1. The title-holder spouse on title benefited from the contributions of the non-title spouse;
  2. The non-title claimant spouse was not compensated in any way while he/she was contributing with his/her time or money;
  3. There are no legal reasons for the title-holder spouse on title to have benefited without compensating the claimant spouse;
  4. There is a direct and substantial connection between the contributions of the non-title spouse and the home itself.

Once satisfied, the courts will make a decision about whether to award the non-title spouse a possessory interest in the matrimonial home, or award them a sum of money.


NOTE: This article has been written for general information purposes only and does NOT constitute legal advice. For further questions and/or legal advice please consult a qualified lawyer.

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