In most cases, the matrimonial home is one of the most important assets in the marriage – both to the children with respect to familiarity and comfort, and to the adults with respect to claims for possession and equalization.
Equal possession
The Ontario Family Law Act grants equal possessory rights to both married spouses, irrespective of which spouse holds the title to the matrimonial home. A court order or agreement is necessary to ensure that one spouse has exclusive possession of the matrimonial home. Otherwise, if a spouse decides to leave the matrimonial home, exclusive possession is not definite for the other spouse. This fact is simply one of the many factors that a court would consider in granting exclusive possession, i.e. the fact that the spouse moved out and has other suitable and affordable accommodation. Other factors include: the effects of a move and the wishes of the children, existing equalization or support orders, the financial position of both spouses, written agreements, and history of family violence.
The mere preference of the spouses to remain in the matrimonial home is insufficient to justify an order for exclusive possession. Notwithstanding this, orders will be granted where the separating parties are warring and litigating. The court will grant an interim order for exclusive possession until the final resolution or trial, irrespective of which spouse commences the litigation.
Houseguests
Houseguests can become quite a nuisance for one spouse or the other. If there is a court order or agreement, one of the spouses is only allowed to enter the home subject to the conditions in the court order or agreement. Otherwise, s/he also has the right to possession, which includes inviting houseguests. If a houseguest’s presence is not desired, an application can be made to the court, upon which the court may make an order restraining the spouse of the applicant from molesting, annoying or harassing the applicant or children in the lawful custody of the applicant and may require the spouse of the applicant to enter into such recognizance as the court considers appropriate. A friend helping the husband move would not meet the legal threshold for “molesting, annoying or harassing.” As such, it is important to properly review court orders and/or agreements regarding the exclusive possession of the matrimonial home.
Support
Pending trial, support can be granted within months of starting an application. Choosing to leave the matrimonial home and not seeking support immediately is an argument that the other spouse could use in providing less support, both retroactive and present, both pending trial and at trial.
Equalization
Equalization of the matrimonial home is, typically, one of the most important financial aspects of a separation. This is because the matrimonial home has special status. Spouses cannot use a marriage agreement (commonly known as “pre-nup”) to contract out of the equal rights of both spouses to the value of the matrimonial home. It is important for each spouse to understand their own financial situation and how the matrimonial home impacts the final calculation of asset division.
The above considerations are not exhaustive and each case requires different attention to particular facts and how they impact the spouses’ decisions regarding the matrimonial home.