MATRIMONIAL HOME LAWYERS
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”. This broad definition includes properties such as cottages and trailers and allows for more than one matrimonial home at any given time. The special status attributed to the matrimonial home is confirmed under Part II of the Family Law Act that sets out certain possessory rights in the home regardless of actual legal title that cannot be overridden by contract.
Section 28(1) of the Family Law Act specifies that the provisions regarding matrimonial homes apply only to property in Ontario. Therefore, any family homes located outside the province will not be given special treatment as matrimonial homes, and will be treated like all other family property.
Couples can designate a home as their matrimonial home and register that designation with the land registry office. If the designation is made by both spouses, any other home that would be considered a matrimonial home under the section 18 definition, then ceases to be a matrimonial home.
One of the most important rights that married spouses have in relation to a matrimonial home is the right of possession i.e. the right to occupy the home. In family law, both parties have an equal right of possession. On a practical level, that essentially means that one party cannot force the other party to leave the matrimonial home without either a signed Agreement or a court Order.
In Ontario, the matrimonial home is treated differently than all other assets under the equalization process. Its value is never deducted from a spouse’s net family property (NFP) as a date of marriage asset, even if that spouse owned the property at the time of marriage. However, the home’s value is always included in the valuation date assets of the spouse who owns the home (or divided between the spouses, if title is held jointly). This results in making the home-owning spouse’s NFP significantly higher than it would have otherwise been if the home was deducted as a date of marriage asset.
Neither spouse can sell or encumber an interest in a matrimonial home, except by court order, unless the other spouse has consented or released their rights to the home in a separation agreement.
This area of law is complex. Our experienced matrimonial home lawyers will help you navigate these issues and protect your rights. Please feel free to schedule a consultation with one of our very experienced matrimonial home lawyers at Gottlieb Law Firm.