Divorce and the Division of the Matrimonial Home

03 May Divorce and the Division of the Matrimonial Home

In Ontario, the Family Law Act governs the division of property upon the breakdown of a marriage, including the matrimonial home. In Ontario, the matrimonial home is a special property category with important legal protections and implications in the event of a separation or divorce.

What is Considered a Matrimonial Home in Ontario?

Under the Family Law Act, the matrimonial home in Ontario is defined as a property that both spouses ordinarily occupy as their family residence on the date of separation. 

It can be any type of property, including a house, condo, or apartment, and does not need to be jointly owned by both spouses. As long as it’s the family’s primary residence at the date of separation, even if only one spouse is the legal owner of the property, it may legally be considered the matrimonial home.

Division of the Matrimonial Home in the Event of a Divorce

Matrimonial home rights in Ontario state that both spouses have an equal right to possess the matrimonial home, regardless of who owns it or whose name is on the title. This means that both spouses have an equal right to live in the property—with some important exceptions—and to share the value of the matrimonial home.

Even if you owned the home before you married, inherited the property, or received it as a gift, matrimonial home rights still apply. 

Will My Divorce Force the Sale of the Family Home in Ontario?

Divorce does not automatically force the sale of the matrimonial home in Ontario. 

If one spouse wants to keep the matrimonial home, they can frequently negotiate a purchase of the other’s share or offset it against other assets, such as investments or retirement accounts. Alternatively, one spouse may transfer their interest in the matrimonial home to the other spouse as part of the divorce settlement, making them the sole legal homeowner.

The division of the property can be complex and pose a significant financial burden to one spouse. Keeping the matrimonial home will require careful consideration and negotiation between the spouses — or a court order. 

Seek legal advice from the family law experts at Stewart Esten Law to better understand your options and responsibilities for dividing the matrimonial home in Ontario.

Do Children Affect Matrimonial Home Decisions?

Ontario courts give significant consideration to the best interests of children in all family law matters, including decisions regarding the division of the matrimonial home. Above and beyond matrimonial home rights in Ontario, the court will take the needs of the children into account, including: 

• their living arrangements;
• their stability and security;
• custody and access arrangements; 
• their age;
• any special needs; and
• any financial resources available to the parents.

The court may prioritize the children’s best interests over other factors, such as the financial contributions or ownership of the matrimonial home. For example, if the court determines that it’s in the best interests of the children to remain in the family home for stability and consistency, it may award one spouse temporary exclusive possession of the home, even if the other spouse is the legal owner of the property.

Speaking to a qualified family law lawyer is important to understand your legal obligations and matrimonial home rights in Ontario.

Matrimonial Home Rights for Common-Law Couples

Ontario’s Family Law Act does not provide the same legal protections for common-law partners as it does for legally married couples. When a common-law relationship ends, the division of property is governed by different rules, and matrimonial home rights do not apply. Indeed, there is no such thing as a matrimonial home in common-law relationships (there has been no matrimony). 

If you made significant financial contributions towards the home owned by your common-law spouse, you may have a right to part of it upon separation. However, unless your ex-spouse agrees to pay you back, you may have to go to court to regain your contribution.

Can a Cottage be Considered a Matrimonial Home in Ontario?

It’s a common misconception that only one home may be classified as “the matrimonial home” in the case of married spouses. Even if the family primarily resided at one property, more than one home may qualify as a matrimonial home. 

For example, if the couple has a cottage they regularly used as a family, it may be classified as a matrimonial home and subject to the special considerations afforded to matrimonial homes in the division of property or equalization in the event of a separation. The fact that it may be a secondary property or a vacation home does not automatically exclude it from being considered a matrimonial home in Ontario.

Ontario Family Law

Stewart Esten LLP is one of the oldest law firms in Simcoe County, tracing its roots back to 1871. Our full-service legal team has the experience and skills you need.

To understand your responsibilities and matrimonial home rights in Ontario, and ensure you get what you’re entitled to under the Family Law Act, contact the family law experts at Stewart Esten Law.