For many couples, the matrimonial home represents the largest and most significant asset. It is therefore incumbent to understand how the matrimonial home is treated upon a breakdown of the marriage and how to protect and preserve your rights if you brought the home that is your matrimonial home into the marriage.

Property Division in Ontario

Property division rights for married spouses are governed by the Ontario Family Law Act. Upon a marriage breakdown or if one spouse dies, each spouse is entitled to an equal division of the value of all of the assets that have been acquired during the marriage, subject to certain exceptions. As part of this calculation, a spouse is entitled to receive a credit for date of marriage assets brought into the marriage unless the property becomes the matrimonial home.

The Matrimonial Home

In Ontario, there are special rules with respect to the treatment of the matrimonial home once a marriage ends.

Part II of the Family Law Act deals entirely with the matrimonial home and defines what it is and sets out the unique treatment and rules regarding the matrimonial home.

Section 18(1) of the Family Law Act defines a "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 is their matrimonial home."1

For the purposes of calculating an equalization payment, if a spouse brings a home into the marriage and that home becomes the family residence, then the right to deduct the value of the home as a date of marriage asset is lost by that spouse. Instead, the value of the matrimonial home will be included as a date of separation asset for the spouse who owns the home.

If you are married, you can have more than one matrimonial home, however, the Ontario Court does not have authority to grant one spouse the exclusive right to possession of the home if it is located outside of the province.  

Unique Treatment of the Matrimonial Home Under the Family Law Act

Unless there is an agreement or a court order for exclusive possession of the matrimonial home granted to one spouse, under Section 19 of the Family Law Act, both spouses have an equal right to possession of the matrimonial home.2 This means that absent an agreement or court order, neither spouse can lock the other out of the matrimonial home. The criteria that the Court will consider when determining the issue of exclusive possession is set out under section 24(3) of the Family Law Act.

Another unique characteristic of the matrimonial home is the absence of court order or consent, neither spouse can sell or encumber any interest in a matrimonial home.

Protecting your Home with a Marriage Contract

Whether you are currently married or plan to get married, you can enter into a marriage contract to protect and preserve your rights in the event of a breakdown of your marriage. To ensure your rights are protected you should enter into a marriage contract that is prepared by an experienced Ontario family lawyer. 

Footnotes

1 Ibid, s 18(1).

2 Family Law Act, supra note 1, s 19.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.