What you can and can’t do with family home after you separate

What qualifies as a matrimonial home, and which spouse has the right to live there?

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Your family home is where you and your family can rest, enjoy each other’s company and create memories. But what happens to this special place when a couple decides to separate and, ultimately, divorce?

How does the law view the family home, and how does its value come into play when determining how a family’s assets are to be divided following separation?

What is a ‘matrimonial home’?

Section 18 of the Family Law Act provides this definition: “Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence.”

To qualify as a matrimonial home, the property must be located in Ontario. This was confirmed in the Ontario Superior Court of Justice case Potter v Boston, decided in 2014, where the court clarified that the relevant section of the Family Law Act applied only to matrimonial homes situated in Ontario. Therefore, properties outside Ontario can never be a matrimonial home as defined in the legislation.

However, the property may be owned or leased. For example, a leased condo may be considered a matrimonial home.

A couple may have more than one matrimonial home. For example, if the couple split their time between a home in the city and a cottage, both may be considered matrimonial homes. The test for determining what properties classify as a matrimonial home is whether the property was ordinarily occupied by the couple in the course of their regular family life.

Couples may also designate a property as their matrimonial home and register that designation with the land registry office. If both spouses make the designation, the property in question is deemed to be their matrimonial home. If the designation is made by only one spouse, any other properties that are ordinarily occupied by the couple may still be considered to be matrimonial homes. One or both spouses can later cancel a matrimonial home designation.

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