In Vaughan and the Greater Toronto Area, the housing market is red hot – and volatile. Housing prices and house evaluations can have a big impact during a separation or divorce. According to zolo.ca, the average price for a home in Vaughan in February – March 2022 was $1.6 million, up over 6% from the previous month, and 27% over the past year.

Why does this matter to Vaughan family law offices? Because the family home is a key asset to be divided during a separation or divorce. 

When a married or common-law couple separates, who lives in the home, who owns the home, and how the value of the home is shared are three different issues. And for many families, the family home is not only their most valuable asset, it can also be the asset with the highest emotional value.

In Ontario, the family home, or “matrimonial home” is separate from other assets.

The Definition of Matrimonial Home

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” (Family Law Act (Ontario), Section 18).

There can be more than one family home. For example, if you have a cottage or property that is considered “ordinarily occupied” by your family, it is included in the definition of matrimonial home.

Married Couples Who Are Separating

When a married couple separates, the value of the property they acquired during their marriage must be split between them. This includes assets like money in bank accounts, vehicles, pensions, businesses - and your family home. It also includes debts, like a mortgage or car loan. In addition, any increase in the value of assets you owned before your marriage must also be split.

The marital home is treated a little differently. You must share the total value of any marital home even if you owned the home prior to the marriage, inherited it, or received it as a gift.

Home Ownership vs Home Possession

Home ownership is not the same as home possession, or who lives in the home. Both spouses are equally entitled to live in the family home after the separation and before a divorce, regardless of who legally owns the house. This includes a residence that is leased.

The right to stay in the family home remains until the couple is legally divorced, the home is sold, or the lease expires. One spouse cannot be locked out or denied access to a family home without a court order.

Cohabitating (Common-law) Couples Who Are Separating

Couples who are Cohabitating (also known as common-law) have different rights than married couples. For one, they are not legally required to divide property when they separate. The general rule is whoever owns the property keeps the property if the relationship ends. If you own the home, that home (and the mortgage) belongs to you. If your name is on the lease to your apartment, you are entitled to remain living there. 

If you have contributed jointly to property during your relationship, you may have the right to share in the value. However, if both parties do not agree, the issue might need to go to court to be resolved. 

A Marriage Agreement or Cohabitation Agreement Can Protect Your Property

One way to protect your property rights is to create a Cohabitation Agreement or Marriage Agreement (also known as a prenup). These agreements can be used to define ownership of a home or vacation property or absolve one partner from taking on the debt of another (incurred before or during the relationship).

Do you Need Someone to Represent Your Rights During Your Separation?

For Vaughan family law services, reach out to the family law team at Sutherland Law. They’re ready to provide you with their expertise regarding separation agreements, divorce, cohabitation agreements, spousal support, and property division. Reach out to the Vaughan Family Law team at Sutherland Law today to discuss your case.

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References:

Ontario Family Law Act
https://www.ontario.ca/laws/statute/90f03

Dividing property when a marriage or common law relationship ends – Government of Ontario
https://www.ontario.ca/page/dividing-property-when-marriage-or-common-law-relationship-ends

Separation and Divorce or Death of a Spouse: Property Division – Steps to Justice
https://www.cleo.on.ca/en/publications/propertydiv/family-home