The Matrimonial Home & Divorce

The matrimonial home has a special place in family law. It carries with it special protections and

obligations.

The concepts around the family home stem from times when women were not allowed to own

property. If a marriage to fall apart, a woman could immediately be booted out of the home. Over time,

various protections came into play such as Dower Rights. It remains the case in some Canadian

provinces that there is Dower Right, or protection, tied to the matrimonial home.

In Ontario, the matrimonial home is protected under the Family Law Act. Regardless of whether one or

both spouses own the home, if it is a matrimonial home, it carries with it:

1. Protections against the sale of the home without the consent of both spouses.

2. The right to occupy the matrimonial home by the spouses.

What is a matrimonial home?

The legal definition is:

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.

What on earth does that mean? The pieces of the puzzle are:

1. Property that is capable of “being occupied”, such as a house, a mobile home, or a caravan.

2. The property must be “regularly occupied” by the spouses.

Note: both spouses must regularly occupy the house.

Note 2: It is possible to have more than one matrimonial home. For example, a

residence in the city AND a cottage, provided both spouses regularly occupy both of

them.

3. The property must exist on the date of separation AND be the one(s) regularly occupied by the

spouses on the date of separation. Simply stated, a formula would be “house you live in every

day + lived in on the date of separation = matrimonial home”.

What if I’m the sole owner of the matrimonial home?

You can’t kick your (ex-)spouse out when you separate.

Your spouse stops receiving the benefit of the increase in value at the date of separation.

But, you do have a date of marriage deduction from your net family property for this property.

What if my spouse won’t agree to sell the matrimonial home?

• They can try to buy you out of the matrimonial home.
  
• You can go to court to have the fight.

How do I know how much the matrimonial home is worth?

For a buyout: Get an opinion of value from a realtor or an appraisal from an appraiser. Subtract from the

value amounts owing on a mortgage and/or home equity line of credit (HELOC), liens., etc.

To sell on the open market: whatever your realtor suggests listing it for, confirmed by the amount that it

actually sells for, minus closing costs and payout of registered encumbrances.

Who is responsible for paying the mortgage, taxes, insurance, utilities, etc.?

Mortgage: This is a contract between you and your bank. If both you and your (ex-)spouse have signed

the mortgage contract, then you’re both on the hook. And vice versa.

Taxes and insurance: It’s usually a condition of your mortgage that you pay these and keep them

current. So if you’re both on the mortgage, you should both be paying these expenses.

Utilities, cable, etc.: Whoever is living in the home should be paying for these, be it one or both spouses.

What if I can’t afford to pay the mortgage, taxes, insurance, utilities, etc.?

Then support may be a question. And you should be asking yourself “can you truly afford to keep the

matrimonial home on your own, or should you cut your losses, sell, and starting moving on with your

lives as separated individuals?”