Exclusive Possession of the Matrimonial Home in Ontario
In Ontario, the Family Law Act gives both spouses an equal right to possession of a matrimonial home, regardless of ownership. For individuals undergoing a divorce in Ontario, a major issue that arises is who gets to stay in the matrimonial home from the time the spouses have separated until the divorce. This could be months or even years later.
Generally, both spouses have a right to live in the home until the courts reach a resolution regarding the possession of the home. However, practically, situations involving a divorce occur under high conflict and emotional circumstances making it impossible for spouses to occupy the home simultaneously.
In such volatile circumstances, even if one spouse does not have legal title to the matrimonial home, they may still be able to continue to occupy the home and have the other spouse move out by obtaining a final or temporary order for exclusive possession under section 24(1) of the Family Law Act. An order for exclusive possession is a severe order against a spouse because it essentially requires that spouse to vacate the matrimonial home and find other living arrangements regardless of who owns the home.
It is important to note that the spouse who is ordered to leave does not give up his or her part of the ownership over the home. It simply allows one spouse to take possession of the home to the exclusion of the other spouse. On the other hand, the spouse that gets exclusive possession cannot sell or dispose of the home without the other spouse’s consent. Also, the spouse that gets exclusive possession may have certain responsibilities in relation to the home including paying for the upkeep and maintenance of the home.
You should also be aware that the exclusive possession provisions in the Family Law Act only apply to married spouses who are separated or are undergoing a divorce in Ontario. Common law spouses or spouses that have already divorced cannot rely on the exclusive possession provisions of the Family Law Act.
When deciding whether to grant an order for exclusive possession, the court will consider certain factors including: the best interest of the children, any existing orders, the financial position of both spouses, any written agreements, the availability of other suitable and affordable accommodations, and whether there has been violence committed by a spouse against the other spouse or against the children.
If you have children, the person who is granted custody of the children will most often be the one who stays in the family home with the children because the courts will try to maintain the status quo. This helps children adjust to their new family situation in a place they are familiar with.
Once an order for exclusive possession of the matrimonial home in Ontario is granted against a spouse, it is an offence for the spouse who is ordered to move out to refuse to comply with the order. If a spouse refuses to comply with the order, they may be arrested or face fines and or possible imprisonment.
Due to the severity of an exclusive possession order and its impact, you should seek professional legal advice from an experienced Toronto divorce lawyer about your rights and responsibilities, including available options when one of you is ordered to leave the home.
Married couples should be aware of the special treatment given to the “matrimonial home” and how its value could end up being equally shared upon separation — regardless of who legally owns it, says Toronto family lawyer Usman Sadiq.
If you bring in a home that you solely owned before the marriage, and reside in the home with your spouse from the time you marry until the date of separation, the entire value of the home up until the separation date could be included in the equalization calculation under the Family Law Act, says Sadiq, principal of Sadiq Law Professional Corporation.
The matrimonial home is treated differently than other assets when equalizing the net family properties of the separated parties. While the premarital value of an asset is usually deducted from an individual’s net family property (NFP), the equity related to the matrimonial home you bring into the marriage is not automatically deducted, even if that spouse was the sole contributor to the purchase and brought equity into the marriage.
“It can lead to unfair results,” Sadiq tells AdvocateDaily.com.
Sadiq points to a simple illustration of how this can play out in a scenario where the only major asset during the marriage was the matrimonial home. A wife whose parents give her $300,000 to buy a home before her marriage, could potentially end up having to share this amount with her husband if they separate down the road. If the total equity in the home was $300,000 on the date of marriage (which is essentially the entire gift from her parents), and if the equity on the date of separation is $400,000, you would assume that the other spouse should only share in the $100,000 increase from marriage to separation (a payment of $50,000). This is not necessarily what happens. Under the Family Law Act, the special status given to a matrimonial home could very well result in the wife having to share in 50% of the total equity in the home on the date of separation, and in this scenario that could result in a payment of $200,000 to the husband.
“There are ways to argue against this, but there is no hard and fast rule,” Sadiq says. Under the Family Law Act, parties may argue unequal division on the basis of unconscionability. This could relate to the acquisition, maintenance and preservation of the property, he says.
Short marriages of less than five years may also have grounds to argue for unequal property division.
Sadiq believes with the anticipated high volume of wealth transfers from one generation to the next over the coming years, newlyweds may be bringing homes into marriages and should take steps to protect themselves with a marriage contract.
“Why is the matrimonial home given such a sacred status?” Sadiq asks. “At the end of the day, we are talking about fairness.”
For example, in the earlier scenario, if the wife had just kept the $300,000 in the bank and purchased the matrimonial home after marriage, she could very well avoid having to share these savings with her spouse upon separation.
“If you own a home before you get married, you should get legal advice and consider a marriage contract,” says Sadiq.
For more information about issues relating to the exclusive possession of the matrimonial home in Ontario or obtaining a divorce in Ontario, please contact our Toronto divorce lawyer.
NOTICE AND DISCLAIMER: The material posted on this website is for informational purposes only and should not be relied upon as legal advice. If you are in need of legal advice relating to your particular situation it is highly recommended to consult with a lawyer.
Helpful Resources:
Divorce and Separation
Family Justice Services
Child Custody and Access
Spousal Support
Child Support
Division or Equalization of Family Property
Treatment of a Matrimonial Home
Enforcement of Support Payments
Child Protection
Child Adoption
