The term “matrimonial home” or “family residence” can mean different things depending on whether you live in Ontario or BC.
In BC, the Family Law Act refers (in section 90) to the “family residence” instead of the “matrimonial home” but it’s the same principle. From the Act:
““family residence” means a residence that is”
“(a) owned or leased by one spouse or both, and”
“(b) the ordinary place of residence of the spouses.“
In Ontario, section 18 of the the Family Law Act defines a “matrimonial home”:
“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.”
So even though they use different language, both Ontario and BC have similar definitions of what a “matrimonial home” or “family residence” is.
In BC, the Supreme Court can grant exclusive occupancy of the family residence to one person or another. The Court can also order that a spouse’s normal right to demand sale of the family residence can be postponed if the Court has already given one spouse exclusive occupancy.
Just like in BC, judges in Ontario can make exclusive occupancy orders about a matrimonial home. There are also other rights in Ontario that prevent one spouse from forcing the other spouse out of the matrimonial home (unless and until a judge orders it).
The Ontario legislation makes a huge distinction when it comes to dividing property though. Section 4 of the Ontario Family Law Act has this huge exception related to “matrimonial homes”:
“net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting”,
“(a) the spouse’s debts and other liabilities, and”
“(b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage;”
(emphasis is mine)
So when you’re calculating what you need to divide with your spouse, you get to deduct the value of what you owned at the date of marriage—except for the matrimonial home and debt related to it.
For many if not most people, their “matrimonial home” is their largest asset. So when they cannot deduct the value they owned in that home on the date of marriage, they are essentially “losing” half of their largest asset on the day of their marriage.
To make things more confusing, depending on where you live at the time of your separation, you might or might not lose the value you brought into your marriage in the form of equity in your matrimonial home. If, for example, you own a house when you marry, live in it with your spouse for a while, but then move into another property before you separate (and if you don’t use the money from the sale of the original house to buy the new house), you get to keep the full value the original house had when you got married.
The best way to reduce this risk is to do so before you separate–and before you get married, if possible. Specifically, you should have a domestic agreement (i.e. a “prenup” or a “marriage contract”).
Short of having a domestic agreement, there may be other things homeowners can do to protect their investment before getting married. As always, it is good to consult with a family law lawyer.
If the information on this site doesn't answer your question, you can book a free, no obligation consultation in Toronto about your divorce and family law rights in Ontario and BC.