Who Gets the House in a Divorce in Ontario?

If you are legally married but in the midst of separating or divorcing, then your family home is likely the most valuable asset you own – and perhaps also the one you feel most emotional about.

But the treatment of the matrimonial home in a divorce is one of the most misunderstood aspects of Ontario Family law.

At our Firm, we hear a lot of wrong assumptions and misconceptions from our divorcing clients, such as:

• Your family home automatically belongs to whichever of you has your name on title. (Wrong!).
• If you have children together and you are the mother, then you will automatically get to keep the home. (Also wrong!).

But here’s the truth:  In Ontario, the matrimonial home is treated differently, in a divorce.  If you are married and decide to separate, your “matrimonial home” is given unique treatment from most of your other marital property.   That’s the basic rule.  (Note that there are separate rules for common-law relationships; the shared family home is not given the same special status).

Frequently Asked Questions

Here are some of the most common questions our clients ask about what happens to the family home after separation or divorce.

Q: What is considered a “matrimonial home” in Ontario?

A: If you are legally married, then the provincial Family Law Act defines your matrimonial home as any property that you and your spouse ordinarily occupied together as your family residence at the date of your separation.

It can include a house, condominium, farm property, cottage, or even multiple properties – provided you regularly lived there together as a family while married.

Q: If the house is in my spouse’s name only, do I still have rights to it?

A: Potentially, yes. But be careful about what you mean by “rights”.  As married spouses you usually have equal rights to possess (not assert ownership over) the matrimonial home, regardless of whose name is on title.  That right ends only when you cease to be spouses (unless a separation agreement or court order provides otherwise).

Ownership and “possessory rights” are not always the same thing. Neither of you can simply lock the other out or sell the property without his or her consent.

Q: How is the matrimonial home dealt with, in a divorce?

A: Ontario uses an “equalization” system for married spouses. Instead of dividing every asset in half, the law compares the increase in each spouse’s net worth during the marriage. One spouse may owe the other an equalization payment.

Importantly, the matrimonial home receives special treatment in this calculation. For example, unlike many other assets, a spouse generally cannot deduct the value of a matrimonial home that he or she owned on the date of marriage if it is still a matrimonial home on the date of separation.

Q: If I owned the house before marriage, do I automatically keep it?

A: Not necessarily. This is one of the biggest misconceptions in Ontario family law.

If you owned your home before marriage, but your spouse moved in and it has become the “matrimonial home” at separation, then special rules usually apply to prevent you from claiming the pre-marriage value as a deduction in the equalization calculation.  That can have a major financial impact on what you walk away with, in your divorce.

Q: Can I stay in the house with the children after separation?

A: Possibly. In some situations, a court can make an order for “exclusive possession” of the matrimonial home, under the provisions of the Family Law Act. This gives one spouse the temporary right to live in the home while excluding the other spouse.

The court considers several factors, including the best interests of the children, financial circumstances, and whether there has been family violence.

Q: Do we automatically have to sell the house after divorce?

A: No. Some former couples agree to sell the home and divide the proceeds. Others agree that one spouse will buy out the other’s interest and keep the property.  In some situations, one spouse may even remain in the home temporarily – under what is known as “exclusive possession” – for the stability of the children, even if the property will eventually be sold.

It all depends on your particular facts.

Q: You mention “exclusive possession”.  What are the steps for getting that?

A: If you are hoping to get exclusive possession of your matrimonial home, then usually you will have to bring a motion before the court. The court will review evidence about the family’s living arrangements, parenting issues, finances, and the practical impact on both parties.

Note however that exclusive possession orders are often temporary; they operate only until there can be a full trial of the issues between you and your spouse, and do not determine final ownership of the home.

Q: Can my spouse force me to leave the house immediately?

A: Usually not – unless there is an agreement or court order that says otherwise. As married spouses, you and your spouse generally have equal possessory rights to a matrimonial home. This means that one of you cannot simply evict the other.

That said, there are exceptions involving safety concerns, domestic violence, or court orders.

The Takeaway

The family home is often the centrepiece of your separation, both financially, and more sentimentally.

Because the legal rules are highly fact-specific, it is important to get legal advice before making decisions about moving out, selling the property, or negotiating a settlement.

If you are at this stage of your separation, feel free to give our offices a call.  We can give you tailored advice for your specific circumstances.