The Matrimonial Home

The matrimonial home is afforded special treatment under the Family Law Act (FLA). Part 2 of the FLA deals entirely with the matrimonial home: what it is, how it is treated in the equalization process, and who has a right to possess it. For many couples, the matrimonial home represents the largest and most significant asset, and it is also a place of great emotional and personal significance. One must mention that only married or formerly married spouses are granted rights under legislation. This includes same-sex couples who have legally married. It is important that couples properly understand how this home is treated under the law.
What qualifies as a “matrimonial home”?
Section 18(1) of the FLA defines a matrimonial home as every property in which either spouse has an interest and which is currently, or was at the time of separation, “ordinarily occupied by the person and his or her spouse as their family residence.” Under this definition, more than one home can qualify as a matrimonial home. If the parties have a cottage that they also use regularly as a family, and were using at the time of separation, the cottage will be a second matrimonial home. But if the cottage was for the most part used only by one of the spouses, it may not be considered a matrimonial home for the purposes of the Act. It is important to note that a married couple may have more than one matrimonial home: their main residence, cottages, chalets, condominiums, etc. can all qualify simultaneously. The dwelling must be used at the time of marriage breakdown as a matrimonial home, and its use need not be full-time but must be consistent with normal use of such property, such as summer long weekends for a cottage, winter getaways to the condo in Miami, and so on.

Protection given to the matrimonial home
Neither spouse can sell or encumber an interest in a matrimonial home, except by court order, unless the other spouse has consented or released their rights to the home in a separation agreement. If one spouse does “alienate” the family home in this way, the court can set aside the transaction upon application of the other spouse. This is the case unless the person who purchased the house did so in good faith and was not aware the home was a matrimonial home (FLA s. 21(2)). Often the sale or encumbrance requires the consent of the other party as per the lender’s requirements. Therefore, it will rarely get done without the consent of the other side.

Advancement of the Law
From the Supreme Court of Canada down through all courts, the last 10 years has seen a series of decisions that have extended spousal rights to common-law couples and to same-sex couples. The major limitation remains the Supreme Court of Canada’s decision in Walsh v. Bona, which at least for the foreseeable future, means that common-law couples of whatever sexual orientation will not have statutory property rights nor equitably obtained similar results.