1. What Is a Matrimonial Home
Under Ontario's Family Law Act, a matrimonial home is any property in which either spouse has an interest and that was ordinarily occupied by the spouses as their family residence at the time of separation. It does not matter whose name is on the title. If it was your family residence at separation, it is a matrimonial home.
There can be more than one, for example a family cottage, if each was in use as a family residence at separation. A home the couple lived in earlier but no longer used as a family residence at separation is not 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
Where children live in the home, their best interests weigh heavily, and the court also considers each spouse's finances, available housing, and any violence.
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. Changes in value after that date are not part of the equalization calculation, although a jointly owned home's later gain or loss is shared through co-ownership. |
| 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. |
| Buyout and Equalization | If the home is jointly owned and one spouse keeps it, that spouse buys out the other's half of the net value. The equalization payment is calculated separately across all property. |
Example: Home worth $600,000, mortgage $200,000 (net value $400,000). Each spouse is entitled to $200,000. If the home is jointly owned and Spouse A keeps it, Spouse A buys out Spouse B's half interest of $200,000; the equalization payment is calculated separately across all property.
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 an order for partition and sale of the home.
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.
7. Frequently Asked Questions
What makes a property a matrimonial home in Ontario?
Under Ontario's Family Law Act, a matrimonial home is any property in which either spouse has an interest and that was ordinarily occupied by the spouses as their family residence at the time of separation. It does not matter who bought it or whose name is on the title. If it was your family residence at separation it is a matrimonial home, and your spouse holds statutory rights in it regardless of the deed.
Can there be more than one matrimonial home?
Yes. Every property ordinarily occupied by the spouses as a family residence at the time of separation is a matrimonial home. A family cottage in use by the family at separation can qualify alongside the main residence, and each one carries the same statutory protections.
Is the matrimonial home excluded from net family property if I owned it before the marriage?
No, and this is the most commonly misunderstood rule in Ontario property division. Most property brought into a marriage is excluded from the net family property calculation. The matrimonial home never is, even where one spouse owned it outright before the wedding.
What is exclusive possession of the matrimonial home?
Exclusive possession is the right of one spouse to live in the home and exclude the other during separation, granted either by agreement or by court order. Courts weigh the best interests of any children living in the home and whether either spouse would otherwise be left without housing.
What happens if my spouse refuses to sell the matrimonial home?
Both spouses must consent to a sale unless a court orders otherwise. Where you cannot agree on whether to sell, on the listing price or on the agent, either party can apply to the court, which can order the sale and settle the terms.
Can I buy out my spouse instead of selling?
Yes. You agree on the buyout price, refinance the mortgage into your sole name, file a discharge of your spouse's interest at the Land Titles Office and execute a deed transfer. On a home worth $600,000 with a $200,000 mortgage the net value is $400,000, so the buyout is $200,000. Financing is usually the constraint, because you must carry the new mortgage alone.
Need Help with Your Home?
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