The Special, Protected Status of the Matrimonial Home

May 10, 2014
Ron Shulman

Article written by Ron Shulman

“Home is where the heart is”, as the saying goes.  But it is more than that: – in Ontario family law, the matrimonial home occupies a special status, and is afforded certain legislatively-prescribed protections.

For these purposes, “matrimonial home” is more than merely the focal point of a couple’s married and family life; rather, it has a specific legal definition.   It is the home “ordinarily occupied” by a “person and his or her spouse as their family residence”.   (Note however that spouses can apply to have a specific home, or a portion of a structure attached to the family home, be designated as a “matrimonial home” pursuant to regulations under the Family Law Act).

With this definition of “matrimonial home” in mind, the Family Law Act goes on to include dedicated provisions that govern its treatment.  Specifically the matrimonial home:

  1. Has special status in connection with the process of equalizing a couple’s net family property upon separation and divorce;
  2. Is an asset to which both spouses are legislatively mandated as having an equal right to possession (for example after a marital separation and before a divorce);
  3. Can nonetheless be the subject of a court order – registerable in the land titles office – that grants one spouse exclusive possession of the home (and this order can be made regardless of whether only one of the spouse’s has legal title);
  4. Is the subject of special 60-day right of possession, rent-free, in cases where a spouse who has no titled interest in it is occupying the home at the time of the other spouse’s death;
  5. Is subject to special provisions in connection with dealing with the land:  While ownership is unaltered, a spouse who disposes of or encumbers an interest in the matrimonial home must make sure the intended transaction complies with one of four conditions:
    1. The other spouse joins in the instrument or consents to the transaction;
    2. the other spouse has released all rights to the home by way of a separation agreement;
    3. a court order has authorized the transaction or has specified that it is not governed by the legislation; or
    4. the property is not designated by both spouses as a matrimonial home but rather there is a designation of another property as a matrimonial home, which was made by both spouses, and that designation has been registered.

Note that if a person contravenes a court order for exclusive possession, is guilty of an offence, and upon conviction is liable to both a fine and imprisonment; the arrest of such a person can take place by a police officer without a warrant.

Do you have questions about your rights in connection with your matrimonial home?  We can help.  Contact us for a consultation.