THE MATRIMONIAL HOME
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The matrimonial home has special significance in family law. It is not just, as is often the case, the most significant family asset. It also provides children with a sense of comfort and consistency in troubled times. The Family Law Act has crafted special rules to balance the need for children to remain in a familiar home with the economic reality that the matrimonial home may no longer be affordable following a separation. The matrimonial home is often a point of conflict after a marriage breaks down. A family lawyer can help guide towards a solution. The following is a list of common issues:
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I. Possession of the matrimonial home
Both spouses have an equal right of possession of a matrimonial home, regardless of who owns the home. What happens after separation when spouses no longer want to live together? Who leaves? Who stays? Where a situation becomes unbearable, an application can be made under the Family Law Act for exclusive possession of the matrimonial home. Here are a few examples from real cases where this application has been successful:
The court has the power to order one spouse to continue to pay the mortgage/rent/bills associated with the property even when they are excluded by law from entering the property. In most cases, an order for exclusive possession of the matrimonial home is a temporary solution. Where the family can afford it one spouse may transfer ownership to the other as part of the equalization of net family property. In other situations, neither spouse can continue to afford the property by themselves, resulting in a sale of the home and a division of proceeds.
- Acrimony in the household: In W.S. v. A.O., [2012] O.J. No. 1525, the court described the situation at home following separation as a "war zone with the children right in the middle of it." There were numerous allegations made by each spouse to the police and Children's Aid Society against one another. The court ordered that the mother would have exclusive possession of the matrimonial home, as this was in the children's best interest until the house was sold.
- Continuity for Children: sometimes moving would cause a significant emotional disruption for a child, especially if it's not affordable for the children to stay in the same neighborhood and go to the same school if the house were to be sold. This was the precise situation in the case of F. v. F, [2013] O.J. No. 3528 where the court allowed the mother's motion for interim exclusive possession of the matrimonial home until trial.
- Domestic violence: domestic violence may render the living conditions in the matrimonial home intolerable for one spouse. This includes physical violence, intimidation and emotional abuse. This was the case in K. v. K, [2008] O.J. No. 1157 where the court found that the wife was fearful of her husband and gave her exclusive possession of the matrimonial home.
The court has the power to order one spouse to continue to pay the mortgage/rent/bills associated with the property even when they are excluded by law from entering the property. In most cases, an order for exclusive possession of the matrimonial home is a temporary solution. Where the family can afford it one spouse may transfer ownership to the other as part of the equalization of net family property. In other situations, neither spouse can continue to afford the property by themselves, resulting in a sale of the home and a division of proceeds.
II. Sale of the matrimonial Home
In some situations, sale of the matrimonial home is the only way to free up the cash necessary for both spouses to move on after a separation or divorce. Where both spouses own a matrimonial home as joint tenants, one of them may apply to have the property sold and the proceeds divided. This may done in Ontario under the Family Law Act or the Partitions Act. Under the Partition Act, a person wishing to force the sale of a house to which they have an is generally granted this remedy. However, in family law proceedings, the court will be reluctant to order a sale of a matrimonial home unless the rights of each spouse has been settled under the Family Law Act.
One such right is the entitlement to an equalization payment based upon the division of property. If one spouse owes a substantial equalization payment to the other spouse, the court may decline to order a sale of a matrimonial home until this issue is settled. Where the house is sold and the issue of division of property has not been settled, the proceeds can get held up in court to await the settlement of the outstanding issues. Speak to a family lawyer to ensure your rights are protected. Email me at [email protected].
One such right is the entitlement to an equalization payment based upon the division of property. If one spouse owes a substantial equalization payment to the other spouse, the court may decline to order a sale of a matrimonial home until this issue is settled. Where the house is sold and the issue of division of property has not been settled, the proceeds can get held up in court to await the settlement of the outstanding issues. Speak to a family lawyer to ensure your rights are protected. Email me at [email protected].