We are open in our 8 offices to serve your needs

Matrimonial Home and What that means for you

Your home. It is likely your most valuable and valued asset. But were you aware that your home may qualify for special treatment under Ontario law?

A matrimonial home is defined by the Family Law Act as every property in which a person has an interest which is or was, at separation, “ordinarily occupied” by married spouses as their “family residence”. Spouses can have more than one matrimonial home. For example, they may have a city residence and a cottage property.

Only married spouses can have a matrimonial home, so these provisions do not apply to common law or cohabiting spouses. The following are implications of matrimonial home status, at date of marriage, over the course of the marriage, and at date of separation.

During the marriage, the spouse legally owning the home cannot sell or encumber it without the consent of the other spouse. Usually, the other spouse will have to obtain independent legal advice on the implications of consent. Because of these restrictions on a property having matrimonial home status, spouses may elect to jointly designate which property or properties are to be treated as matrimonial home(s). Once a home is designated a matrimonial home by registration of a document on title, other homes which would otherwise be deemed matrimonial homes lose that characterization.  They can, therefore, be sold or encumbered without the consent of the other spouse.

Both spouses have an equal right to possession to the matrimonial home(s), regardless of ownership. That is, one spouse may legally own the home, but both married spouses are equally entitled to live in it. If the marriage breaks down, the owner spouse cannot require the other spouse to move out of the matrimonial home before a divorce is granted, nor can the owner spouse unilaterally change the locks.  The entitlement to equal possession can be varied only by court order (in very limited circumstances) or separation agreement (not marriage contract).

Married spouses equalize their property upon separation. To do so, each spouse must calculate his or her net family property which, simply put, is net worth at the date of separation less net worth at the date of marriage. This deduction of marriage date assets ensures that only wealth accumulated during the marriage is equalized.  An important exception to this scheme is a home.  If a spouse owns a home at the date of marriage which becomes the matrimonial home, and which remains the matrimonial home at the date of separation, the spouse cannot deduct the home’s value at marriage date from net family property.  For example:

  • Dick and Jane marry in 1990.  Dick has a bank account with a balance of $500,000 and Jane has a house worth $500,000.
  • Dick and Jane live in Jane’s house, which becomes the matrimonial home.
  • When they separate in 2000, they are still living in that same home.
  • Dick can deduct the $500,000 date of marriage bank account value from his date of separation net worth but Jane cannot deduct the $500,000 date of marriage value of her house.

The fact that the $500,000 value is in the form of a matrimonial home rather than a bank account makes a significant difference in the calculation of each party’s net family property and, hence, in the ultimate equalization payment. To avoid this wrinkle, which if often considered unfair, many parties opt to enter into a marriage contract that specifically allows the deduction of the value of the matrimonial home for equalization purposes, thereby levelling the playing field.

I would be happy to consult with you to discuss the home in greater detail.

Contact Form - Contact Us Page

Request a free consultation

Please fill out this form with your contact information and someone will be in touch with you soon.

Contact Preferences

How would you like to be contacted? Click all that apply.

How can we help you?

Brief description of your legal issue:

The use of the Internet or this form for communication with the firm or any individual member of the firm is not secure and does not establish a lawyer-client relationship. Confidential or time-sensitive information should not be sent through this form.

locations

Toronto

4211 Yonge Street • Suite #210 • Toronto • Ontario • M2P 2A9

View Map | Learn More

Aurora **

16 Industrial Parkway South • Aurora • Ontario • L4G 0R4

View Map | Learn More

Barrie

500 Mapleton Avenue, Suite A • Barrie, Ontario • L4N 9C2

View Map | Learn More

Downtown Toronto **

100 King Street West • Suite #5600 • Toronto • Ontario • M5X 1C9

View Map | Learn More

Mississauga

4257 Sherwoodtowne Blvd Suite #300 • Mississauga Ontario • L4Z 1Y5

View Map | Learn More

Scarborough **

10 Milner Business Court • 3rd Floor • Scarborough • Ontario • M1B 3M6

View Map | Learn More

Grimsby **

33 Main Street West, • Grimsby • Ontario • L3M 1R3

View Map | Learn More

Whitby **

105 Consumers Drive - Unit 2, • Whitby • Ontario • L1N 1C4

View Map | Learn More
** Satellite office that requires you to book an appointment with us prior to arriving at the office.
Federation of Asian Canadian Lawyers
Law Society of Ontario
Peel Law Association
UJA Federation of Greater Toronto
York Region Law Association
Collaborative Practice Simcoe County
Law Association Simcoe County
Widows & Orphans Fund