Who Gets the House in an Ontario Divorce? Understanding Matrimonial Home Rights

Written on behalf of Shariff & Associates

For many couples going through a separation or divorce, the family home is one of the most significant assets involved. It is often not only a major financial investment but also the place where children were raised and where many years of family life took place. As a result, questions about what will happen to the home are often among the first concerns that separating spouses raise.

In Ontario family law, the family residence, known as the matrimonial home, is treated differently from most other property during separation or divorce. Understanding how the law approaches the matrimonial home can help individuals make informed decisions about their next steps and reduce uncertainty during what is often a difficult transition.

Below is an overview of how Ontario law defines the matrimonial home, the rights both spouses have to it, and what may ultimately happen to the property when a relationship ends.

What Is a Matrimonial Home Under Ontario Law?

Under Ontario’s Family Law Act, a matrimonial home is any property that was ordinarily occupied by spouses as their family residence at the time of separation. This can include a house, condominium, cottage, or other property where the couple lived together.

It is possible for a couple to have more than one matrimonial home. For example, if spouses regularly lived in both a city residence and a seasonal cottage, both properties may qualify as matrimonial homes under the law.

The designation of a property as a matrimonial home carries important legal consequences. Unlike most other assets, the matrimonial home is subject to special rules regarding possession, sale, and property division.

Equal Right to Possession of the Home

One of the most significant aspects of matrimonial home law in Ontario is that both spouses have an equal right to possession of the home, regardless of whose name is on the title. This means that even if one spouse purchased the property before the marriage or is the only registered owner, the other spouse may still have the legal right to remain in the home after separation.

As a result, one spouse generally cannot simply change the locks or force the other spouse to leave the property without a court order or agreement between the parties. Doing so could have legal consequences and may complicate the separation process. For couples navigating a separation, this shared right to possession can create practical challenges, particularly when both parties wish to remain in the home.

Can One Spouse Stay in the Home After Separation?

When spouses separate, they must decide whether one person will remain in the home temporarily or whether the property should be sold. In many cases, one spouse chooses to move out while the other remains in the home, particularly if children are involved and maintaining stability is a priority. However, moving out does not necessarily mean giving up legal rights to the property.

If spouses cannot agree on who should stay in the home, either party may apply to the court for exclusive possession of the matrimonial home. A court order granting exclusive possession allows one spouse to live in the property while requiring the other spouse to leave, even if that spouse is the legal owner.

Courts consider several factors when deciding whether to grant exclusive possession, including the best interests of any children, each spouse’s financial circumstances, and whether other suitable housing options are available.

Exclusive possession orders are typically temporary and remain in place while the broader family law issues, such as property division and parenting arrangements, are resolved.

What Happens to the Matrimonial Home During Property Division?

In Ontario, property division following a separation is governed by a system known as equalization of net family property. Under this system, each spouse calculates the value of the property they accumulated during the marriage, minus debts and certain exclusions. The spouse with the higher net family property amount usually pays the other spouse an equalization payment to balance the difference.

The matrimonial home is treated differently from other property in this calculation. Generally speaking, if a spouse owned the home before the marriage, they cannot deduct the value of the home at the date of marriage when calculating their net family property. This rule often results in the matrimonial home being shared more equally between spouses than other types of property.

Because the matrimonial home can represent a large portion of a couple’s overall assets, its treatment in the equalization process can significantly affect the financial outcome of a separation.

Options for Dealing With the Matrimonial Home

When a relationship ends, couples typically resolve the issue of the matrimonial home in one of several ways.

One common approach is to sell the home and divide the proceeds between the spouses. This option allows both parties to access their share of the property’s value and move forward independently.

Another option is for one spouse to buy out the other spouse’s interest in the home. In this situation, the spouse who wishes to remain in the property refinances the mortgage and pays the other spouse their share of the home’s equity.

In some cases, spouses may agree to temporarily delay selling the home, particularly if children are living there and the parties wish to minimize disruption during the school year or another transitional period.

Each of these approaches has financial and practical implications, and determining the most appropriate option often requires careful planning.

Can One Spouse Force the Sale of the Home?

Disagreements about whether to sell the matrimonial home are common during separation. When one spouse wants to sell the property and the other does not, the issue may need to be resolved in court.

In Ontario, a spouse may apply to the court under the Partition Act to request an order for the sale of jointly owned property, including the matrimonial home. Courts will often grant such requests unless there is a compelling reason not to do so. However, family law considerations, such as the impact on children or unresolved financial issues, may affect the timing of a sale.

Because the sale of a home can significantly affect the outcome of property division, it is important for separating spouses to understand their legal options before taking action.

Special Considerations When Children Are Involved

When children are involved in a separation, decisions regarding the matrimonial home often take on additional importance. Parents may wish to maintain stability for their children by allowing them to remain in the family home while parenting arrangements are finalized. Courts may also consider the children’s living arrangements when determining whether one parent should receive exclusive possession of the home.

However, keeping the matrimonial home is not always financially feasible, particularly if maintaining the property requires one spouse to assume mortgage payments, property taxes, and other expenses alone.

Balancing the emotional importance of the family home with practical financial considerations is often one of the most challenging aspects of separation.

Shariff & Associates: Innovative Family Lawyers Serving the Markham Stouffville Region

Separation and divorce often raise complex questions about the family home and property division. If you are going through a separation and are unsure about your rights regarding the matrimonial home, obtaining legal advice can help you make informed decisions about your future.

The family and divorce lawyers at Shariff & Associates assist clients throughout Markham, Stouffville, and the surrounding York Region communities with property division, parenting issues, and all aspects of separation and divorce. Whether you are concerned about remaining in the matrimonial home, negotiating a buyout, or addressing disputes about the sale of a property, experienced legal guidance can make a meaningful difference.

To discuss your situation with a member of our team, please contact us online or call 905-591-4545 to schedule a confidential consultation.