What Canadian family court says
1. It depends where you live. Provinces and territories have different legal rules.
2. You can have more than one matrimonial home. For example, your home, cottage and sailboat if you sleep and eat there as a family.
3. A matrimonial home may be your whole farm or only the house and a few acres around it. It depends if the farm is recreational or you farm for a living.
4. An apartment can be a matrimonial home. Even if it is leased, not owned, and only one spouse leased it.
5. You and your spouse must have ‘ordinarily occupied’ the home when you separate. You don’t have to live there full-time. You just have to use it as a family residence from time to time (your ski chalet or vacation trailer). A new home under construction is not matrimonial because you didn’t occupy it.
6. It matters where the home is. For example, your home in Toronto is a matrimonial home. Your cottage in Whistler is not. Property interests are subject to family law in the place where they are located.
7. It doesn’t matter who owns the mortgage. You, your spouse or both of you can ask to live there when you separate.
8. You can agree in writing on who will live there. You could also ask family court for ‘exclusive possession’, evict your spouse and live there alone.
9. You can only change the locks if you have exclusive possession.
10. If your spouse disputes your right to live there, the court will consider your children’s best interests, any existing court orders, both spouses’ financial position, if your spouse has an affordable, suitable place to live and whether violence was a problem.
11. Your children’s views count. Why is it important for your children to live there? Is it close to school, friends, hobbies? Do they have special needs? Would moving affect their emotional stability?
12. Whoever owns the home pays the mortgage, even if they don’t live there. Your spouse can’t default to force foreclosure, causing you to lose exclusive possession.
13. Your spouse must get your consent or a court order to sell or mortgage the home. Both before or after you separate. That protects your right to possession.
14. Common-law partners share a family home, not matrimonial home. Since your legal rights are different, check with Axess Law if you lived common law.
15. If you divorce, you lose the right to exclusive possession. It’s important to get a court order or signed agreement for exclusive possession as soon as you separate. Especially if your spouse is ill or dying.
16. Finally, the court may refuse to give you exclusive possession. A family judge could ask for a parenting assessment first. Or order a nesting arrangement where your children live in the home and you and your spouse take turns living there and caring for them.
Well that was complicated. Axess Law’s family lawyers can help you sort through who owns your matrimonial home. Just ask us.