Which part of the FLA deals with the matrimonial home?

Part 2 of the FLA deals with everything about matrimonial home(s). It explains what a matrimonial home is, and how it is treated as an equalization process, and who has the rights to possess the matrimonial home. For a lot of couples a matrimonial home(s) are seen as the biggest and most important asset. As well as the fact that the matrimonial home is a place that carries great emotional and personal significance to the couple. And this is important for couples to know how important it is to treat the home properly under the law.

Can more than 1 home qualify as a matrimonial home?

Yes and no, if you have more than one house qualify as a matrimonial home if the second home is used by the whole family. Otherwise if you or your partner is solely the one who occupies the second home then that home will not qualify as a matrimonial home. For instance if the couple has a cottage and it’s been used by the family often and throughout the time during the separation then it will qualify as a matrimonial home. But if the cottage was used by one person then it will not qualify.

Can you designate a house as a matrimonial property?

The couple can also designate a home as a matrimonial home and have the land registry office register the designation. This designation provides certain rights and protections to both spouses, especially in cases of separation or divorce by ensuring that neither spouse can sell or mortgage the property without the other’s consent or a court order. If both spouses designate the same property then no other property is a matrimonial house. On the other hand if the designation was created by one person, then other properties will still be continued as matrimonial homes, and it can be canceled by one or both of the spouses. 

Can a property outside Ontario qualify as a matrimonial property?

Under Section 28(1), discussions about the provisions about matrimonial homes only apply to properties in Ontario. Whereas families whose homes are outside Ontario will not get special treatment like matrimonial homes and will receive treatment like other family property.

Under which section can one apply for exclusive possession?

Under the s.24(1) either spouse can apply for an exclusive possession for the home, even if one spouse does not have a legal title to the home. The court can grant an order for a temporary or final order, but it is rare for the court to do so even if it is on a temporary basis. Mostly in extreme situations where there is violence or a spouse cannot afford accommodations then the court will consider an order for an exclusive possession.

Do you have to be married to be granted possession?

Yes, because unmarried couples do not have the same rights as a married couple. As for the legal owner of the home, they have the advantage in these cases. Although the court can permit unmarried couples to stay in a home due to “lawful justification”, this means unmarried couples can still stay at home since they are still contributing to the home, or if one of the partners’ is financially dependent on the partner who owns the property.

What are the factors the court considers in granting possession?

The factors that the court will consider in granting possession is:

• If the best interest for the child/children is being affected
• Any existing supporting orders or anything under Part I (family property)
• Both spouse’s position with their finances
• If the parties have written agreements on anything
• Any availability of other accommodations

And 

• If the spouse committed any violence against the other spouse or child/children

Does possession change the ownership of the house?

Ownership of the house does not relate to the rights of possession of the house. 

Section 19(1) of the FLA states that with the matrimonial home both spouses (married) have equal rights on possessing the home. If the home is owned by one of the spouses, the second spouse’s rights to possess the matrimonial home would be not be affected. The court can make a court order or separation agreement that can extend the right. 

Can common law spouses use this remedy?

Common laws are limited to their ability to use this remedy as FLA states in s.1(1) that common laws do not fall under the definition of spouse. Although this does not mean that they cannot claim exclusive possession.

What are other angles a common law spouse could rely on?

Common law spouses can try to get exclusive possession through other mechanisms such as spousal support, trust claims, restraining orders, or as part of a parenting order. 

1. Common law that have a trust claim on a property can result in a injunction, which allows the spouse to stay in their house until the issue has been resolved
2. s.34(1)(d) of the FLA provides a mechanism for them to seek relief regarding the family home. They can apply for spousal support and, by extension, seeks orders related to the matrimonial home under this section. In other words, support payment can from a form of possession of the home. You can do this as long as you meet criteria in section 29 of a “spouse”. The court will consider the best interests of the child, the financial position of both parties, and existing agreements.
3. s.46(1) of FLA under a restraining order OR s.35(1) of the Children’s law Reform Act. The possession of the home could be a consequence of an Order, instead of being the purpose of the Order

Does exclusive possession come with certain obligations?

Certain obligations of exclusive possession to be aware of are responsibilities for the partner that is living in the home. For instance the partner that is remaining in the house would likely have to pay for utilities and take care of the house. In some cases, an order can say whether or not the other partner is allowed to pick up their stuff from the home or if they can visit the home. For instance, they can be allowed to visit the home to pick up the child for parenting time.

Which courts can grant exclusive possession of the matrimonial house?

In Ontario, only 2 courts are able to give you an exclusive possession order

• Superior Court of Justice, and
• Family Court Branch of the Superior Court of Justice.

Ontario Court of Justice will not give you an exclusive possession order.