Many people want to know who gets the family home in a divorce.

Your home is the place where you started your life together, raised your children or may hope to retire.

When divorce or separation occurs, being wrenched away from your home can be traumatic.

The division of property can be a challenging aspect of divorce, especially when it comes to deciding who gets the family home. In Ontario, the Family Law Act governs the division of property, including the family home. The family home is considered a “matrimonial home” and each spouse is entitled to a 50% interest in the property, regardless of who owned or paid for it.

Division of the matrimonial home in Ontario

However, certain factors can impact the division of the matrimonial home, such as one spouse contributing significantly to the property’s value or paying for most of the expenses. In some cases, one spouse may have exclusive possession of the home, which can also impact the property division.

If one spouse wants to keep the family home, it may be possible for them to buy out the other spouse’s interest in the home. This can be done by either refinancing the mortgage or paying an agreed-upon amount.

It’s important to remember that the division of the matrimonial home is just one part of the property division process, which also includes the division of other assets and debts accumulated during the marriage. Seeking the help of an experienced family law lawyer can help ensure a fair and equitable division of property, and protect your rights throughout the legal process.

The division of property and the family home can be complicated and emotional. Understanding the legal process and seeking professional advice can help ease the stress and ensure that you get a fair settlement.

The Family Home In A Divorce

But wait a minute. Do you have any right to stay in your home if your spouse or children leave? In Ontario, both spouses have an equal right to live in what is called the matrimonial home.

That is until a judge decides which party should move. (You could, of course, if your relationship is amicable, simply agree to share the house.)

Resolving property disputes

Regardless of whose name the lease, mortgage or deed may be in, once you separate, neither of you can sublet, rent, sell or mortgage the home without your spouse’s consent.

Disputes about who will live in the matrimonial home may be resolved with the help of a lawyer, mediator or arbitrator.

Or you could take your spouse to court to request exclusive possession.

The spouse who has custody of minor children usually gets to keep the home, since adjusting to a new home, neighbourhood or school can be disruptive.

You can also agree to sell and share the proceeds as part of the division of joint property.

Who get’s the family home in a divorce can be very complex.

Want your ex to pay your legal costs?  If you win, your spouse might have to pay the fees.

When is a matrimonial home your own?

A couple who ran into financial difficulties, “Sam” and “Theresa”, sold their matrimonial home to her mother in 2005. The $450,00 sale was unconditional.

The mother generously agreed that her daughter, son-in-law and grandchildren could live in the home rent-free.

As happens in families, no lease or agreement was signed. Theresa’s parents paid the property taxes, insurance and upkeep for 13 years.

It was a sweetheart deal and, like many when family relationships are involved, well-intentioned.

Most people think it’s worth fighting for the family home in a divorce.

If you refuse to leave

By March 2018, the marriage was struggling. Theresa separated from Sam and left the family residence.

Two months later, the in-laws sent Sam and the couple’s three adult children a notice to vacate in 60 days. They refused to leave the home.

Sam and the grandchildren claimed that under Ontario’s Family Law Act (FLA).

This means that the residence was a matrimonial home. Sam’s counsel notified the couple his clients would be filing a court application for exclusive possession.

A last-minute twist

Delays continue over a year after Sam and the grandchildren were asked to vacate.

The Ontario Superior Court of Justice (ONSC) eventually heard the matter. A day before the hearing, the grandparents received a new communication. This fax was from yet another lawyer.

It advised that Sam planned to file an application seeking exclusive possession of their property.

The judge was dismissive and called it a duplication and abuse of process. He commented that Sam and the couple’s children could not use the latest application to avoid litigation with the grandparents.

It had already been set in motion. Sam could, however, pursue a family law application against his spouse.

If you have questions about the family home in a divorce, contact us. We will connect you with a lawyer.

Who Is Liable For What?

Sam and the grandchildren were unrepresented at the day’s hearing. Nevertheless, their argument was that, regardless of who owned the property, it was a matrimonial home.

That, they said, entitled them to exclusive possession.

The FLA provides that every property in which a person has an interest and that is or was before a couple’s separation “ordinarily occupied by the person and his or her spouse as their family residence” is a matrimonial home.

The Act allows the ONSC to direct that one spouse have exclusive possession of the matrimonial home (or part of it) for any period the court sees fit.

How selling affects your interests

Sam was relying on these sections to uphold his claim. The judge ruled otherwise.

By selling the home to her mother in 2005, Theresa, who was by then the sole owner, had surrendered her interest in the property.

Further, even if Theresa had owned the home when they split in 2018, Sam could only take his spouse to court.

Theresa’s parents now co-owned the home.

Sam could exercise any proprietary interest he thought he might have in a matrimonial home against Theresa. But under the FLA, his in-laws weren’t liable to Sam and their grandchildren.

Your right to stay

Since Sam and the grandchildren didn’t have any proprietary rights in the home, they also couldn’t live there. They had effectively been evicted in May 2018.

Ontario’s Residential Tenancies Act (RTA) offered no relief. Section 5(i) of the RTA put Sam and the grandchildren beyond the reach of tenancy protections.

Theresa was the adult child of the home’s owners. The RTA deemed that Sam and the grandchildren had shared a bathroom and kitchen with Theresa in 2005 when their homeownership ended, and their tenancy started.

That put them in limbo since the RTA does not apply to:

“(i) living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located.”

Ontario property division

Sam and the grandchildren had been living in the home for well over a year, free of any rent or upkeep expenses.

The court found the home’s owners had given them more than reasonable notice to vacate. Was it not for Sam’s FLA applications, they would have been forced out sooner.

The judge terminated their occupancy, giving the family 14 days to vacate.

If they defied the court order, the local sheriff’s office was empowered to take possession of the property the day after.

Sam and the grandchildren were ordered to pay joint court costs for the application and two hearing adjournments. The bill? $7,700.

Assuming their home was their property simply because they lived there while the marriage was intact was a mistake.

If you have questions about your family’s proprietary interests, contact ClearWay Law. We will connect you with an attorney.

What Happens to the Matrimonial Home in Divorce?

The matrimonial home is most couples’ biggest asset. That’s why understanding how Ontario law regards this asset is so important.

The following is a description of how Ontario law regards the matrimonial home when divorcing couples go to divide their property.

What Is the Matrimonial Home?

The matrimonial home, in Ontario, is a legal term set forth in the Matrimonial Property Act. It is the property that was a couple’s primary residence up to and including the time of separation.

If one member of the couple purchased the home prior to the onset of the marriage, the home is still considered a matrimonial home if the couple lived in it together. This definition extends to other properties that the couple used together and both spent time at.

The definition is subject to change. For instance, if one member of the couple retires, that person may wish to spend the majority of their time living in a vacation cottage that the couple owns.

The primary residence can lose its designation as a matrimonial home in this case.

Ontario property division

When couples divorce in Ontario, each person tallies up their family net worth, and the person with the higher figure must make an equalization payment to the other party.

Ordinarily, some property is exempt, such as personal inheritance.

Matrimonial homes factor a bit differently from other properties in two key respects:

1. If one person owned the home before, they cannot subtract the pre-marriage value of the home as a separate asset. The entire value of the matrimonial home counts as part of your net family property.
2. If you use personal assets to improve the matrimonial home, those assets are no longer exempt from equalization and must count toward the family’s net property value.

Matrimonial Home After Separation

An issue of concern to many people is who has the right to possess a matrimonial home after separation.

Under Ontario law, each member of the couple has an equal right to possession up until the court makes its final ruling, and the couple is divorced.

A soon-to-be-ex-spouse must apply to the court prior to that date if they want exclusive possession of the matrimonial house.

It may be granted if it’s in the best interest of the children to continue living there. The occupying spouse must then pay rent to the other spouse.

How is the value of a house determined in a divorce in Ontario?

In an Ontario divorce, the value of the family home is determined through a property appraisal conducted by a certified appraiser. The appraiser considers several factors such as location, size, condition, and comparable sales in the area. The assessed value of the home is then used to calculate each spouse’s share in the property for the purposes of property division.

It’s worth noting that the appraised value of the home may be adjusted based on deductions for outstanding mortgages or liens on the property and necessary repairs or renovations. Additionally, if one spouse is entitled to a larger share of the home due to a significant contribution or exclusive possession, the value of that spouse’s interest may be revised.

Apart from the appraised value, other factors such as the spouses’ contributions to the property’s value, the length of the marriage, and the financial circumstances of each spouse may also be considered in determining each spouse’s entitlement to the property.

If spouses are unable to agree on the value of the home, they may seek a court’s determination. In such cases, each party presents evidence to the court, and the court decides on the home’s value and each spouse’s entitlement to it.

Who gets to live in the home?

The law provides important protections for the matrimonial home during a divorce. Generally, neither spouse can sell or encumber their interest in the home without the other spouse’s consent, unless a court order is obtained or the other spouse has released their rights to the home in a separation agreement.

If one spouse sells the home without proper authority, the other spouse can apply to the court to have the transaction set aside, unless the purchaser acquired the home in good faith and without knowledge that it was a matrimonial home.

It’s important to note that ownership of the home does not necessarily determine the right to possess it. Under the Family Law Act, both spouses have an equal right to possession of the matrimonial home, even if only one spouse is the legal owner. However, a court order or separation agreement can extend this right.

In certain circumstances, a spouse may apply for exclusive possession of the home under section 24(1) of the Act. However, courts will only grant such an order in exceptional situations, such as when there is violence, an intolerable living situation, or one spouse cannot afford alternative accommodation.

This is because exclusive possession is a drastic measure that requires a spouse to vacate the home and find other living arrangements. It is essential to seek the guidance of a skilled family law lawyer to ensure that your rights and interests are protected throughout the divorce process.