What is a Matrimonial Home and Why Does it Have Special Status?

Although many people use the terms “matrimonial home” and “family home” interchangeably, they are not in fact the same. In Ontario, a matrimonial home is given special status because it is usually the most valuable asset that a family owns and because it is the heart of where family life unfolds.

The term “matrimonial home” is defined in section 18 of the Family Law Act (Ontario) as “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 [their] spouse as their family residence”.

These are some of the more important things that you need to know about a matrimonial home:

  1. Only married parties have a matrimonial home. Parties who live together and are not married do not have a “matrimonial home”, no matter how long they have lived together. Instead, parties who live together and are not married have a “family home”. A “family home” does not have the same legal status as a “matrimonial home”.
  2. To qualify as a “matrimonial home”, the residence must be in Ontario. Accordingly, neither a cottage in Quebec, nor a condominium in Florida or New York City is a matrimonial home. Residences outside Ontario, even if regularly occupied by a family on weekends or during the summer months are treated like any other real estate or asset and no special rights attach to them. More significantly, an Ontario court does not have the authority to make an order granting one party the exclusive right to occupy a residence if it is located outside Ontario.
  3. A matrimonial home may be owned or leased. It may be owned or leased by only one spouse or by both spouses. In other words, a residence may be a matrimonial home even if one of the spouses does not own it or, if it is leased, one spouse’s name is not on the lease.
  4. The term “matrimonial home” includes: (1) real estate (detached home, condominium, townhouse, garden home, cottage or a farm); (2) leased premises (apartment or condominium); and (3) personal property (trailer or a boat).
  5. Spouses can have more than one matrimonial home at the same time. For example, they may divide their time between a house in the city, a cottage in the country and a condominium at a ski hill. Provided that all of the properties are, at the time of separation, “ordinarily occupied” by the spouses as their “family residence” and they are all located in Ontario, all three properties may be found to be matrimonial homes.
  6. To qualify as a matrimonial home, the residence must be “ordinarily occupied” as a “family residence”. The term “ordinarily occupied” means “in the course of regular family life”. When the status of a residence is in dispute (i.e. the spouses don’t agree whether or not it is a matrimonial home), the courts look at how the residence was used by the spouses or family and the amount of time the spouses or family spent there. Often, but not always, the quantity of time that a family spends in a residence, coupled with their intention to use it as a “family residence” will ultimately determine whether it is a matrimonial home. So, for example, if spouses move into a particular residence with the intention of residing there indefinitely but then separate after only a few weeks, the home may still be considered a matrimonial home. Likewise, a home under construction in which the spouses are not yet living may not be considered a matrimonial home because they have not “ordinarily occupied” it as their family residence.
  7. Farms are somewhat more complicated. A farm may include both a residence and many acres land. Only the residence itself plus that portion of the property that is “reasonably necessary to the use and enjoyment of the residence” will be considered the matrimonial home, whereas the surplus acreage will not. Generally, courts will designate the farm house and one or more acres of surrounding land as the matrimonial home. 
  8. If spouses occupy more than one residence, whether leased or owned, they may choose to formally designate only one residence as their matrimonial home. This will give it the special protection that is afforded to a matrimonial home. If, however, they designate only one of their residences as their matrimonial home, any other property that is not designated but would otherwise fall within the definition of “matrimonial home” will automatically cease to be a matrimonial home. 
  9. A matrimonial home may only be mortgaged (or otherwise encumbered) or sold with both spouses’ consent or a court order, even if only one spouse is the legal owner. Spouses may sign a written Agreement through which one of them waives their rights regarding a matrimonial home, in which case, the other spouse may mortgage or sell it without consent. If one spouse sells or mortgages a matrimonial home without the other spouse’s consent or a court order permitting the sale or encumbrance, the court may set the transaction aside.     

One of the most important rights that married spouses have in relation to a matrimonial home is the right of possession - the right to occupy it. In law, both parties have equal rights of possession. At a practical level, that means that one party cannot force the other party to leave the matrimonial home without either a signed Agreement or a court order. Signed Agreements and court orders giving one spouse the exclusive right to occupy a residence may be enforced by the police. 

A spouse who has the right to exclusively reside in a matrimonial home by Agreement or court order has the right to change the locks to the premises. People often change the locks if their spouse moves out of the home to prevent the spouse from returning. They don’t actually have the right to do that without an Agreement or an order. 

The right to continue residing in a matrimonial home as a non-owner spouse is what we refer to as a “personal” right and it is personal against the owner-spouse. The significance of the right being personal is that once spousal status is lost, the right of possession for a non-owners spouse ends.  Spousal status is lost when a marriage is annulled, people get divorced or if the owner-spouse dies. In all of these situations, without an Agreement or an Order giving the non-owner spouse exclusive possession of the matrimonial home, they could be forced to leave. It may therefore be important to have an Order or an Agreement for exclusive possession in place if the owner-spouse is ill and at risk of death or if the owner-spouse is seeking an immediate divorce. Once a divorce is granted, the court no longer has the authority to make an order for exclusive possession.

When people separate, there is often conflict about who will continue to live in the matrimonial home. The court has the authority to make either a temporary or a final order permitting only one spouse to live in the matrimonial home. The order is called an “exclusive possession” order. In making an exclusive possession order, the court is required (by section 19 of the Family Law Act) to consider the following factors:

  1. the best interests of the children who reside in the home;

  2. any orders that may have already been made relating to property;

  3. existing support orders;

  4. the financial position of both spouses;

  5. any written Agreement between the parties;

  6. the availability of suitable and affordable accommodation for the person who is being asked to leave the residence; and

  7. any violence committed by a spouse against the spouse who is seeking exclusive possession of the matrimonial home or their children.

When courts are considering children’s “best interests”, they are required to consider the possible disruptive effects on the child of a move to another accommodation and the child’s views and preferences, if they can be reasonably ascertained. 

What does all this mean at a practical level?

  1. Being forced to leave your matrimonial home is serious. Orders for exclusive possession are made only after the Court has balanced everyone’s rights very carefully. A spouse who wants exclusive possession of a matrimonial home must demonstrate with evidence that the other person can find other suitable and affordable accommodation.
  2. There must be evidence about why it is in the children’s best interests to continue living in the matrimonial home and with only one parent, to the exclusion of the other parent. For example, is the matrimonial home the only home that the children have ever known? Is it close to their school, extra-curricular activities and friends? Does a child have special physical needs that the home accommodates?  Does a child have difficulty coping with change or emotional needs that are best met by staying in the home? Has the child been so affected by conflict between the parents, that remaining in the home is needed as a source of stability?
  3. If children are old enough to express their individual views and preferences about where they live, their evidence should be put before the court. There will, of course, be circumstances in which the home must be sold and the need to sell it will outweigh the children’s wish to continue to live there. Generally, children’s views and preferences are put before the court in reports written by their counsellor or therapist or in a Voice of the Child Report which may be prepared by a social worker, psychologist or  lawyer who meets with the child to obtain their views and preferences. Sometimes parents put forward evidence from a child’s teacher, caregiver or extended family member. Evidence from these sources may be given more or less weight, depending on how neutral the person is.
  4. This is one area of family law where spousal conduct is relevant. More specifically, family violence perpetrated by one spouse against the other may result in an exclusive possession order. Violence includes: (1) physical violence; (2) emotional violence; (3) intimidation; and (4) threats. When there has been intimate partner violence, the court may require one spouse to leave the home so that the children and the other spouse are safe. Breaches of an exclusive possession order are considered serious.
  5. Sometimes the evidence falls short of proving that only one spouse should be permitted to reside in the matrimonial home and the order may not be granted. Courts may also refuse to make an order for exclusive possession out of concern that allowing only one parent to live in the home may jeopardize the other parent’s claim for custody or parenting time with children. As a result, courts will sometimes permit both parents to continue living in the matrimonial home while a parenting assessment is being done. Courts may also order what is commonly referred to as a “nesting” arrangement. In a nesting arrangement, the children continue to live in the home full-time and the parents take turns living in it to care for them.

If you are considering separating or you are already separated, it may be very important for you to consult with a lawyer to find out whether or not your residence is a matrimonial home, what rights you have or what rights you should be enforcing.


Kathryn d'ArtoisComment