As established by section 18 of the Ontario Family Law Act, a matrimonial home is defined as “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 is their matrimonial home. Only married parties have a matrimonial home.
Parties who live together and are not married do not have a “matrimonial home”, no matter how long they have lived together. Instead, parties who live together and are not married have a “family home”. A “family home” does not have the same legal status as a “matrimonial home”.
It is important to note that this definition does not only apply to just one home, as it states “every property” that is “ordinarily occupied” under this definition. A second property that you and your spouse spend a significant amount of time can also be considered a matrimonial home. Examples of these include a lake cottage, a condominium at a skill hill, or a beach house.
Although more than one property can be considered a matrimonial home, couples can designate one home as their matrimonial home by registering that designation with the land registry office.
If the designation is made by both spouses, any other home that would be considered a matrimonial home under the s. 18 definition then ceases to be a matrimonial home. If the designation is made by only one spouse, other properties being used as matrimonial homes will continue to be considered matrimonial homes.
If both spouses later decide to cancel the matrimonial home designation, the s. 18 definition of matrimonial home applies again, and any property that ceased to be a matrimonial home at the time of the designation will again be considered a matrimonial home, provided it continues to meet the s. 18 definition.
For a residence to be considered a matrimonial home under s.18 of the OFL, the residence must be in Ontario. Residences outside Ontario, even if regularly occupied by a family on weekends or during the summer months, are treated like any other real estate or asset and no special rights attached to them.
If you are married, both you and your spouse have an equal right to stay in the matrimonial home unless a judge decides that one of you must move out. Since both of you have a right to stay in your home, neither of you can sublet it, rent it, sell it or mortgage it without the other’s permission. This is true even if your lease is in only one of your names or if only one of you owns the home.
Upon separation, both of you may want to stay in the family home. If you cannot agree on who should stay in the family home, you can use lawyers, a mediator or an arbitrator to help you decide, or you may have to go to court to have the judge decide.
An order or agreement for exclusive possession allows one spouse to use it, but not the other. If there are children involved, the person who has custody of the children will most often be the one who stays in the family home with the children. This allows children to adjust to their new family situation in a place and neighbourhood that they already know.