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The Matrimonial Home

In Ontario, the Family Law Act is the legislative source of matrimonial property laws. That is to say, when a marriage breaks down and the couple is deciding how to divide up the assets and the debts that they accumulated over the course of that marriage, their lawyers look to the Family Law Act. One issue that the Family Law Act deals with explicitly is the rights and obligations on marriage breakdown in relation to the matrimonial home.

Matrimonial Home

A matrimonial home is any and every property in which either spouse had an interest at the time of separation that was ordinarily occupied by the spouses as a family residence. This can include a house, apartment, condo, cottage, ski chalet, or other properties. Couples can have more than one matrimonial home. Matrimonial homes might be the percentage of a cottage that one spouse owns with a sibling. 

The key is that you need matrimony to have a matrimonial home. Common law couples do not have the same rights and obligations as married couples, either during their cohabitation or on relationship breakdown. This is one of the key distinctions between married and common law couples in Ontario. Being a legally married spouse makes a big difference. (See our blog on the various definition of "spouse" here: ).

Family Law Act treatment

The Family Law Act treats the matrimonial home in a particularly careful way both during the marriage itself, and in the event of separation. Legally married spouses cannot:

  1. mortgage a matrimonial home without the consent of his or her spouse; or
  2. sell a matrimonial home without the consent of his or her spouse.

Common law spouses are not restricted in this way, although if you and your spouse own property together then you will be restricted in your dealings by normal property law (for more on this check out Burke-Robertson LLP's real estate blog: )
On marriage breakdown, legally married spouses but not common law spouses are:

  1. equally entitled to remain in the matrimonial home, regardless of ownership;
  2. equally entitled to ask the court for exclusive possession of the matrimonial home and its contents while litigation progresses, regardless of ownership; and
  3. equally entitled to the value of the equity in the matrimonial home, regardless of ownership, and even if one spouse owned the house prior to marriage.

Common Law Spouses

Common law spouses cannot make these claims using the Family Law Act. There may be reasons why one spouse's case for a claim for exclusive possession is stronger (for example, an aspect of the custody or access arrangement relating to children of the marriage) but both spouses are entitled to make the claim.
Every case is different, and the law about property rights and common law couples is an area that's been in flux recently, and addressed by the Supreme Court of Canada (see Vanasse v. Seguin for a major recent development). The basic rights relating to the matrimonial home arise from legislation that does not extend the rights and obligations to common law couples. The provisions just don't apply if you aren't married.

- Jenny

Remember, everyone's situation is unique. The blogs posted on this site are informational. They are not intended to be taken as legal advice for your situation. It is always a good idea to seek professional legal advice before making any decisions related to your particular case.

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