Unlike other property and assets, the matrimonial home is given special consideration under the Family Law Act of Ontario. The two important features of the matrimonial home which distinguish it from other real property pertain to possessory rights (i.e., who can live in it after separation) and equalization of the value of the matrimonial home. Given these two issues, it may be beneficial for you to know that based on your unique facts and situation, you may have one matrimonial home, multiple matrimonial homes, or no matrimonial home.
A matrimonial home is defined in section 18(1) of the Family Law Act as:
18. (1) Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.
With that in mind, lets begin with no matrimonial home. This is a rather uncommon situation, but nonetheless it may happen. In Shelley v. Shelley, 2009 CanLII 9393, a couple were building their “dream home” which was nearly completed when they separated. They had unfortunately sold their previous home a few months before they could move into the new home. When they separated, the wife wanted to have possession of the new home, but the court found that they were not “ordinarily occupying” the new home at the date of separation. As such, it did not meet the definition of a matrimonial home and thus the possessory rights of the matrimonial home under Part II of the Family Law Act did not apply.
It is important to note that, despite not being recognized as a matrimonial home, the parties were joint tenants, and were still entitled to 50% of the value of the newly built “dream home”.
Having one matrimonial home can be regarded as the norm, and doesn’t require much elaboration. That being said, if you are the sole titled owner of a home prior to or on the date of marriage and you and your spouse live in this home on the date of separation, it is important to draw your attention to the fact that the sole titled owner cannot deduct the value of the home on the date of marriage from the value of the home on the date of separation, and the entire equity in the home is shared between the spouses. However, if you sell your home after the date of marriage, and you and your spouse live in a different home on the date of separation, then, as the sole titled owner of the first home, you are entitled to list the value of that property as an asset you owned on the date of marriage. The value of property on the date of marriage is then deducted from the value of property on the date of separation.
Finally, the courts have recognized that there could be multiple matrimonial homes. This often arises in the context of a summer cottage and other real property. While there is no simple check list, a court would have to make a factual determination regarding all real property in order to conclude whether or not it meets the definition of a matrimonial home.
In Reeson v. Kowalik, 1991 CarswellOnt 341, the court held that the second property, which was a year-round retreat, qualified as a matrimonial home. The court noted that the parties went there together most weekends, they entertained family and friends there, and they had a tradition of spending Thanksgiving there. In contrast to Reeson, the court held in Schantz v. Schantz (1987, unreported) that because the summer cottage was merely a recreational residence used in the summer, it was not the parties' matrimonial home.
In Ledrew v. Ledrew, [1993] O.J. No. 596, the court held in the five years prior to their separation, they spent no time together at the White Cottage, and thus it had ceased to be a matrimonial home.
In Oliver Estate v. Oliver, [2012] O.J. No. 1522, the court found that the second condo was not a matrimonial home, noting that: “The parties did not spend a significant part of their time at the condo, either together or separately, and did not treat it as a family residence” (para 54).
In Goodyear v. Goodyear, [1999] O.J. No. 29 the court noted that "to occupy something ordinarily does not require constant or continual occupancy, nor does it require occupancy of every square metre" (para 16).
In Durakovic v. Durakovic, 2008 CarswellOnt 5329 and MacFarland v. MacFarland, [2009] O.J. No. 2149, the courts found that the parties need not be physically together when occupying the family home; rather the parties’ present intentions are key (as opposed to their future intentions). In both cases the parties treated the second properties as a family home.
James Anderson