For many couples, the family home is their largest asset and one of the most emotional issues to deal with after a separation. Beyond its financial value, it may be where children live, where a family has spent years together, and where one or both spouses hope to remain.
Ontario family law gives the matrimonial home special treatment. Questions about who can stay in the home, whether it should be sold, and how its value affects the division of property can therefore be more complicated than simply looking at whose name appears on the title.
What Is a Matrimonial Home in Ontario?
Generally, a matrimonial home is a property that spouses ordinarily occupied as their family residence at the time of separation. A couple may have more than one matrimonial home, depending on how the properties were used.
The rules governing matrimonial homes are important because they can differ from those governing other property. This is one reason spouses should be cautious about making assumptions based only on who originally purchased the home or who is registered as the owner.
Who Gets to Stay in the Home After Separation?
Separation does not automatically mean that one spouse must immediately leave the matrimonial home. Married spouses may have rights to the home even when only one spouse is on the title.
In some cases, spouses agree on temporary living arrangements. In others, a court may be asked to address possession of the home. Factors involving children, finances, safety, and family circumstances can become relevant.
Does Ownership Decide Who Gets the House?
Legal ownership is important, but it does not answer every family-law question. Ontario’s property division rules for married spouses can affect how the value of the matrimonial home is treated when the relationship ends.
The rules can also differ depending on whether the couple was legally married or living in a common-law relationship. Common-law partners do not automatically have the same property division rights as married spouses, although other legal claims may sometimes arise.
Can One Spouse Keep the Family Home?
Sometimes one spouse wants to remain in the home, particularly when children are involved. Whether that is practical depends on several factors, including ownership, the property’s value, the mortgage, the overall division of family property, and whether the spouse can afford the ongoing costs.
One possible outcome is that one spouse acquires the other’s interest in the property. That can require a valuation, financing, and a broader agreement resolving the couple’s property issues.
What If the Home Needs to Be Sold?
Selling the home may be the most practical option when neither spouse can afford to keep it or when its value needs to be accessed as part of the separation. Ideally, spouses can agree on issues such as timing, listing price, repairs, and the selection of a real estate professional.
When spouses cannot agree, the dispute can become more complicated. Before taking steps to list, transfer, or refinance a matrimonial home, legal advice can help clarify each spouse’s rights and obligations.
What Happens to the Mortgage?
A separation does not automatically remove a spouse from a mortgage. If both spouses signed the mortgage, the lender’s rights generally continue regardless of the couple’s private arrangements.
If one spouse plans to keep the property, refinancing may be necessary. Couples should consider the mortgage, property taxes, insurance, utilities, and other carrying costs when deciding whether keeping the home is financially realistic.
Why the Date of Separation Matters
The separation date can be important when dealing with property division and financial disclosure. Establishing the correct date is not always as simple as identifying the day one spouse moved out, particularly when spouses continued living under the same roof for a period.
Keeping records of property values, mortgage balances, and other financial information around the time of separation can be useful when resolving financial issues.
When to Speak With a Family Lawyer
Legal advice can be particularly useful before selling or refinancing the home, signing an agreement about ownership, leaving the home because you believe you have no right to remain, or making major financial decisions based on assumptions about property division.
Top Lawyers Canada can help you explore experienced family lawyers in North York, experienced family lawyers in Toronto, and experienced family lawyers in Vaughan who advise on separation, divorce, matrimonial homes, and property division.
You can also browse Toronto lawyers and relevant family-law profiles to find a lawyer whose experience fits your situation.
Frequently Asked Questions
Who gets the house after separation in Ontario?
There is no automatic rule that one spouse always gets the house. Ownership, possession rights, property division, finances, and any agreement or court order can affect what happens to the home.
Can my spouse make me leave the matrimonial home?
A married spouse may have rights to possession of the matrimonial home even if their name is not on title. A spouse should consider getting legal advice before assuming they are required to leave.
Can I sell the matrimonial home without my spouse’s permission?
Special rules may apply to a matrimonial home, and one spouse may not be free to sell or otherwise dispose of it without addressing the other spouse’s rights. Legal advice should be obtained before a proposed sale or transfer.
What happens if only one spouse owns the house?
Being the registered owner does not necessarily resolve all matrimonial-home and property-division issues for married spouses. The circumstances and Ontario family-law rules need to be considered.
Can one spouse buy the other out of the family home?
Potentially. A buyout may be possible if the spouses agree on value and the spouse keeping the property can arrange the necessary financing. The transaction should usually be considered as part of the overall property settlement.
Are the rules the same for common-law couples?
No. Common-law partners generally do not have the same automatic property division regime as married spouses in Ontario. However, ownership and other potential claims can still create important legal issues.
Find a Family Lawyer
If you are separating and have questions about your home, property, or financial rights, Top Lawyers Canada can help you explore experienced Canadian family lawyers by location and practice area.