1. What Is a Matrimonial Home
Under Ontario's Family Law Act, a matrimonial home is any property in which a married couple resided together as spouses. It does not matter who owns the property or whose name is on the title, if you lived there as a married couple, it is a matrimonial home.
Importantly, there can be more than one matrimonial home if the couple lived in different properties during the marriage (e.g., a family cottage). Each property where the couple resided together is a matrimonial home.
Owning the title to a home does not mean you own all the benefits of the home after divorce. Your spouse has statutory rights in the matrimonial home regardless of whose name appears on the title deed.
2. Exclusive Possession During Separation
During separation, before divorce is finalized, either spouse can seek exclusive possession of the matrimonial home. This means one spouse has the right to live in the home and exclude the other spouse from it.
Exclusive possession is granted by court order or by agreement. Courts consider several factors when deciding who gets exclusive possession:
- The best interests of any children (are they living in the home?)
- Whether one spouse would be rendered homeless or without adequate housing without possession
- The conduct of both spouses (but not grounds for separation)
- The financial circumstances of each spouse (ability to secure alternative housing)
- Domestic violence or safety concerns
In Ontario, family courts almost always award exclusive possession to the spouse with primary care of the children. Without children, the court balances the above factors.
Exclusive possession is temporary. It lasts only until the property is dealt with in the final divorce order, either sold or transferred to one spouse.
3. The Matrimonial Home and Net Family Property
When property is divided in an Ontario divorce, the starting point is equal division of net family property (NFP). The matrimonial home is treated differently than other property:
| Issue | How It Affects the Matrimonial Home |
|---|
| Excluded Property | Most property brought into the marriage before it began is excluded from NFP calculation. BUT the matrimonial home is NEVER excluded, even if one spouse owned it before the marriage. |
| Value at Separation | The matrimonial home is valued as of the date of separation. Appreciate or depreciate in value after that date is shared equally in property division. |
| Mortgage and Debt | The mortgage is a debt that reduces the net value. Both spouses are liable for the mortgage until it is paid off or refinanced in one spouse's name alone. |
| Equalization Payment | If one spouse keeps the home, the other spouse is entitled to half the difference between the home's value and the mortgage debt. |
Example: Home worth $600,000, mortgage $200,000 (net value $400,000). Each spouse is entitled to $200,000. If Spouse A keeps the home, Spouse A must pay Spouse B $200,000 as an equalization payment.
4. Selling the Matrimonial Home
Many couples choose to sell the matrimonial home and divide the net proceeds (sale price minus real estate costs, legal fees, and mortgage payoff). This is often the cleanest solution and avoids disputes later.
Both spouses must consent to the sale of the matrimonial home unless the court orders otherwise. If you disagree on whether to sell, either party can apply to the court for a possession order to force sale.
When selling, the typical timeline is:
- Agree on a listing price and real estate agent (or go to court if you cannot agree)
- List and market the property
- Accept an offer and negotiate closing date
- Close the sale and pay off the mortgage from proceeds
- Divide the remaining net proceeds according to the divorce order (usually 50/50)
5. Buying Out Your Spouse
Instead of selling, one spouse can buy out the other spouse's interest in the matrimonial home. This requires:
- Calculating the equalization payment: Home value minus mortgage minus other property divisions, divided by 2
- Obtaining financing: The buying spouse must refinance the mortgage in their sole name and obtain a new mortgage or equity line of credit to pay the other spouse
- Obtaining title in one name: A discharge of the other spouse's interest must be filed at the Land Titles Office
- Executing a deed transfer: Both spouses sign a deed transferring title from joint ownership to one spouse alone
The buying spouse must qualify for financing in their sole name. Many people cannot refinance the full value of the home alone, especially if their income is lower than during the marriage (e.g., if they take parental leave or reduce work hours).
6. Mortgage and Financing
Both spouses remain liable on a mortgage unless and until the mortgage is discharged or refinanced in one spouse's sole name. A divorce order does not automatically remove one spouse's liability to the lender.
Critical steps:
- The buying spouse must apply to refinance the mortgage with the lender BEFORE the sale completes, or as soon after as possible
- The selling spouse (not on the new mortgage) should obtain a written discharge from the lender confirming their liability has been removed
- Without refinancing, the selling spouse remains liable if the buying spouse defaults
- If the buying spouse cannot refinance, the home typically must be sold to avoid disputes and debt liability
Lenders do not care about your divorce order. If your spouse's name is on the mortgage and they stop paying, the lender can pursue either or both of you for the full debt. Always refinance to remove the liability of the departing spouse.
Need Help with Your Home?
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