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 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.
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.
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.
The Family Home In A Divorce- 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.”
The Family Home In A Divorce- 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, 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 the 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.
How Is the Matrimonial Home Different from Other Assets?
Ordinarily, some property is exempt, such as personal inheritance.
Matrimonial homes factor a bit differently from other properties in two key respects:
- 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.
- 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.
Do you have questions about how to handle property division during a divorce? The lawyers provide compassionate consult to individuals going through all stages of this difficult process.
Author: Alistair Vigier is the CEO of ClearWay Law