June 1, 2012 By: Marta Siemiarczuk
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The matrimonial home is a very special creature in the context of a separation. It must be noted that the home where spouses ordinarily reside together is only a “matrimonial home” if the spouses are married. The information below only applies in the context of a marriage, and not in the context of a common law relationship.

Right of Possession

Under Ontario’s Family Law Act, both spouses have a right to equal possession of the matrimonial home, or, in other words, they are both entitled to live in the home. It doesn’t matter whether one spouse is actually the legal owner. The non-owner spouse has a right to live in the home, even if the spouses have separated. Therefore, the owner spouse cannot do things like change the locks, or require the non-owning spouse to move out without an agreement or court order. Again however, this rule would not apply to a common law relationship.

Prohibition Against Sale

Again, pursuant to the provisions of Ontario’s Family Law Act, in the context of a marriage, if one spouse, or both spouses jointly own the matrimonial home, neither spouse can sell or dispose of the matrimonial home without the consent of the other. This rule stems from the above principle that even a non-owning married spouse has a right to possess (live in) the home unless an agreement or court order says something to the contrary. Therefore, even if only one of the spouses owns the matrimonial home, he or she could not actually sell the home without the express written consent of the non-owning spouse.

No Deduction for Equity in Matrimonial Home in Calculation of Division of Matrimonial Assets

>In the normal course, when married spouses separate, in order to determine the appropriate division of assets on marriage breakdown we would calculate the net value of each parties’ assets that they came into the marriage with (all assets minus all debts on the date of marriage). We would then calculate for each spouse their respective net assets owned on the date of separation (all assets minus all debts on the date of separation), in order to determine each spouse’s net increase of wealth during the marriage. The spouse who has the higher net increase would have to make a payment to the other spouse of 1/2 the difference between their respective net increases in wealth accumulated over the marriage. The Ontario Family Law Act creates an exception for the matrimonial home however.

Notwithstanding that one spouse may have owned the matrimonial home on the date of marriage in sole tenancy, and brought that asset into the marriage, he or she does not get to include the value of that asset as something he or she owned on the date of marriage. The full value of the home at the time of separation is included in his or her calculation of net assets on the date of separation. Simply put, you do not get a financial credit on marriage breakdown for having brought the matrimonial home into the marriage.

It must be noted that for this exception to apply, the same home must still be the matrimonial home at the time of separation. If the original home was sold and a new home moved into and was the matrimonial home at the time of separation the spouse who brought the original home into the marriage would be allowed to include the value of the original matrimonial home in calculating his or her assets owned on the date of marriage. As a corollary to this, in the normal course, any money or money’s worth that was gifted to a spouse from a third party (say parents or an inheritance from that rich uncle who lives in Europe) is excluded from the calculation of a spouse’s net assets owned on the date of separation. However, if that inherited or gifted money is put into the matrimonial home, i.e to pay down the mortgage, build a pool or renovate, the exclusion is lost.

These types of issues can have a very large impact on a spouse’s financial situation at the time of separation. If you are contemplating marriage and already own a home, you should consider getting some legal advice on this issue to determine whether you wish to take some steps to protect the value of that asset in the event of a marriage breakdown.

For additional information, please feel free to contact Marta Siemiarczuk, marta.siemiarczuk@nelligan.ca, 613-231-8281

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Family Law