Treatment of the Matrimonial Home Under the Law

Family home in the summer

The matrimonial home is a home that is occupied by a married couple at the time of separation. These homes have a unique treatment compared to other types of homes. Keep reading to discover some specifics related to matrimonial homes.

What Qualifies as a Matrimonial Home?

Section 18 of the Family Law Act (FLA) defines a matrimonial home as a property in which either spouse has an interest and which is currently (or at the time of separation), by the person and their spouse as the family residence. If a couple’s relationship deteriorates and one of the spouses moves to another home, the home they moved to does not count as a matrimonial home. Homes that were matrimonial homes at the time of the marriage but not at the time of separation are no longer considered matrimonial homes.

Treatment of the Matrimonial Home

The value of the matrimonial home cannot be deducted or excluded because it must always be included in the net family property of the title holder. One must be mindful of the separation of joint tenancy by operation of law or conduct and financial contributions, if any, of the non-title holders who may get equitable ownership of the share of the property. If one of the spouses was the only title owner of a property before marriage, this does not mean that they will continue being the sole title owner once the married couple starts living in that house. The status of the matrimonial home is “immutable”. A spouse cannot sell or encumber an interest in a matrimonial home unless the other spouse has consented or released their rights to the home. The only exception is if these actions are taken by court order. There is a difference between owning the matrimonial home and having possession of the matrimonial home. Section 29(1) of the FLA states that both spouses have an equal right to possess the home, even if only one of the spouses owns the home. Under Section 24(1) of the FLA, either spouse can apply for exclusive possession of the home. However, this is a drastic order, and as such, courts will rarely issue such an order.

Case Law on the Exclusive Possession of the Matrimonial Home

Early case law applying factors outlined in section 23 of the FLA, provides some valuable learnings regarding exclusive possession of the matrimonial home. For example, in Rosenthal v Rosenthal (1986), the wife applied for exclusive possession of the matrimonial home. However, her claim was denied because “she did not believe the separation should affect her living standards”. In this case, the court expected living standards to decrease.

In another family law matter, Pifer v Pifer (1986), the wife was granted exclusive possession due to her husband’s drinking and smoking with young daughters in the home. Yet, in another Ontario-based case – Hill v Hill (1987) – the husband wrote a threatening note to his wife and misreported and delayed his financials. Given the anxiety-provoking nature of the note, the court labelled it as “psychological warfare” akin to violence and gave exclusive possession of the matrimonial home to the affected party. 

As Wilson v Wilson (1989) noted, financial resources may play a role in determining the exclusive possession of the matrimonial home. In this case, the husband was an abusive alcoholic, convicted of physical violence against his wife. The husband made very little money. His wife was unemployed. They had three kids. The court ruled in favour of the wife. She received exclusive possession of the matrimonial home as well as financial support. Notably, the court considered the guiding principle – the best interests of the children. As a result of weighing the factors, the court determined that it did not make sense for the wife and her three children to move out. Plus, the mortgage rate was very low.  

Finally, in a more recent case Montemarano v Montemarano (2018), pondering the relevant factors of section 24 of the FLA, the wife brought an application for interim exclusive possession of the matrimonial home. The husband was well off and could afford to move out. However, he would show up unannounced and disturb his ex-wife when he was picking up their children. His conduct did not raise to the level of violence contemplated by the statute; therefore, the court did not grant exclusive possession of the matrimonial home to the wife. It was in the best interests of the children not to interfere with the ex-husband’s pick-ups and drop-offs.

Contact Us

This material is for informational purposes only and should not be relied upon as legal advice. To book a consultation with Buzaker Law Firm regarding your matrimonial home or other real estate property, contact us at info@vblegal.ca or (905) 370-0484. 

 

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