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Matrimonial home the focal point of divorce disputes

The matrimonial home often takes centre stage in the fight between divorcing couples, Toronto family lawyer Carolina Paterson tells AdvocateDaily.com.

Before clients even approach her, Paterson, an associate with Fogelman Law, says separating spouses have usually already started talking about whether it should be sold, or who, if anyone, gets to stay in the family home.  

“It’s often the largest asset they have,” Paterson says. “It’s the focal point of family life during the relationship, and it ends up being the centre of attention in the breakdown of the relationship too.”

Since provincial law dictates how the equalization of a married couple’s property occurs following a separation, the definition of the matrimonial home differs by jurisdiction, and according to Paterson, many of her clients are surprised to find out that Ontario’s Family Law Act allows for more than one property to be classified as a matrimonial home.

Under s.18 the 1986 law, “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.”

The law also allows couples to register certain properties as matrimonial homes, but that doesn’t always stop disputes, according to Paterson, who notes that a court can declare recreational properties such as cottages or holiday homes in warmer climes matrimonial homes, even if they’re not used year-round.

“You get into arguments about which is truly a matrimonial home,” she says. “If one party brought the cottage into the marriage, there might be arguments over whether it was ‘ordinarily occupied,’ because ‘you never wanted to go up there.’”

Paterson says the designation can prove crucial since spouses are unable to deduct the net value of the matrimonial home from their date of marriage net worth for the purposes of equalization, even if one of them brought it into the marriage. She says marriage contracts will often address this issue in order for the spouse who owns the property at marriage to protect the equity.

In addition, no matrimonial home — even those in the name of one spouse only — can be sold or mortgaged without the consent of the other spouse. Both parties may also ask a court to grant them exclusive possession of a matrimonial home following separation, Paterson adds.

Another common misconception about matrimonial homes is that the equity in the home will be split 50-50 between the spouses following a separation, Paterson says, explaining that in Ontario, the property is treated just like any other asset owned by the parties to be equalized following the separation.

“They may have an idea based on the way a principal residence is treated under the Income Tax Act,” Paterson says. “You might end up with a 50-50 split, but it’s not guaranteed.”

Although some have called for the law regarding matrimonial homes to be simplified, Paterson says she’s comfortable with the status quo in Ontario.

“I think we have a very fair way of treating the matrimonial home, especially in relationships where one spouse is not on title,” she says.

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