A Voice of the Child Report Brings a Child’s Perspective into Family Litigation
November 21, 2022
Rights with respect to the matrimonial home are afforded special treatment under both provincial and federal family legislation. The significance of the property cannot be overstated, given that it often represents a couple’s highest-valued asset. The home is given so much weight under the law that couples cannot contract out of the right to possess the home in advance, via a cohabitation or marriage agreement. Further, the matrimonial home must be included in the calculation of net family property when dividing assets, even if one spouse owned the property prior to the marriage.
A person’s actions following a separation can have an impact on their right to possess the matrimonial home. If one spouse opts to move out, it may make it easier for the other spouse to obtain an order for exclusive possession of the home leading up to the divorce. If the couple share children who remain in the home with the other spouse, the spouse who left may also find it more challenging to arrange parenting time with their children. For this reason, it is important to discuss the issue with your lawyer as soon as possible once you have made the decision to separate.
Before making a hasty decision, each spouse should ensure they don’t take any steps that could affect their rights going forward. At Long Shariff & Associates, our family lawyers will review your obligations and rights with respect to the home and ensure you don’t take any actions that may prematurely affect those rights. If you have children, we will negotiate a temporary parenting plan to maintain contact with your children while the terms of the separation are resolved.
When it comes to the matrimonial home, legal ownership does not determine the right to possess the home. Even if the property is held in just one spouse’s name, both spouses retain rights to remain in the home. It is possible for both spouses to stay in the home for the duration of the mandatory one-year separation period, yet still be considered legally separated for the purposes of obtaining a divorce. However, not all couples can make this arrangement work, especially in situations where there is a great deal of conflict.
In these situations, one spouse can opt to apply for exclusive possession of the home pending the finalization of the divorce. Either spouse can make an application for exclusive possession, regardless of ownership. Courts will generally set a high bar before granting even a temporary order for exclusive possession, given the implications for the spouse ordered to leave. The factors a court will consider in making an order with respect to exclusive possession include:
It is important not to be hasty in deciding to leave the home. If a spouse vacates the matrimonial home of their own volition, it may have a significant impact on several of their rights in the divorce. If there are children involved, a parent’s decision to leave them in the exclusive care of their other parent might impact the eventual parenting arrangements. Further, a spouse who chooses to leave will not likely be successful if they wish to apply for exclusive possession of the home after leaving.
We encourage every client to review their circumstances with us before deciding to leave their matrimonial home. We will provide a comprehensive overview of the potential impact of their actions to ensure they don’t inadvertently impact their rights.
It is possible for a family to have more than one matrimonial home. A matrimonial home is defined in the legislation as any property that is or was, prior to separation, ordinarily occupied by the spouses as a family residence. Under this definition, any real property where the family normally resided together, including a recreational property such as a vacation home or cottage, can be considered a matrimonial home. Notably, however, this only applies to property located in Ontario.
If a couple wishes to assign the matrimonial home designation to specific properties, they can do so by registering a declaration to that effect on the property’s title. This can help to clarify matters by limiting the designation to the primary residence or expanding it to include other properties. To ensure the designation will be upheld in family court, both spouses must consent to the designation. Just like a marriage agreement, this can be an effective way to set the intentions of the parties in advance in the hopes of avoiding unnecessary conflict in the event of a separation.
While some assets owned by one spouse prior to the marriage may be excluded from the calculation of net family property, the matrimonial home is not one of them. Regardless of who owned the home and when, the law recognizes the significance of the asset to both spouses and as such, its value must be shared equally upon separation. There are some exceptions to this rule which we are happy to discuss with you and advise if it fits your situation.
Note that this is not the case for common-law couples. Even when a couple shares a home for several years, there is no entitlement to exclusive possession or a division of the value unless a couple is married or if the person who is not on title can establish a trust claim to the home. This right can also be created using a well-designed cohabitation agreement if desired.
If you are facing an impending separation or divorce and are unsure of your rights with respect to the matrimonial home, the lawyers at Long Shariff & Associates can help. We will carefully review your rights and obligations with respect to protecting your entitlements with respect to the home and ensure you don’t take steps that could limit your rights to the home or even to your children.
Our firm encourages collaborative dispute resolution whenever possible, to help keep your family relationships intact throughout the separation and divorce process. We understand that you may need to remain in the same residence as your spouse throughout this process, and so we strive to minimize conflict whenever possible. Our primary concern is always to protect your interests, and the interests of your children, if applicable. To review your matter with a member of our team, please reach out to us online, or call us at 905-591-4545.
November 21, 2022