Who Gets The Family Home In A Divorce?

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 occur, being wrenched away from your home can be traumatic.

The Family Home In A Divorce

But wait a minute. Do you have any rights 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, neighborhood 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.

Learn more: How To Get Divorce Papers In Canada

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, and 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.

Sam and the grandchildren claimed that under Ontario’s Family Law Act (FLA) 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 ensued. Over a year after Sam and the grandchildren were asked to vacate, Ontario Superior Court of Justice (ONSC) heard the matter. But a day before the hearing, the grandparents received a new communication. This fax was from yet another lawyer, again advising that Sam planned to file an application seeking exclusive possession of their property.

The judge was dismissive. Calling it a duplication and abuse of process, he commented that Sam and the couple’s children could not use the latest application to avoid the litigation with the grandparents. It had already been set in motion. Sam could, however, pursue a family law application against his spouse.

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Who is liable?

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 under sections 18 and 24 of the FLA.

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.

The Family Home In A Divorce

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.”

A tenant in your “own” home

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, call ClearWay Law. Our family law lawyers can advise whether you have a case. Want to know who might get the family home in a divorce? Dial the law firm Hotline at 1-844-466-6529 or email info (at) clearwaylaw.com