FAQ: Matrimonial Home

Find out the answers to frequently asked questions ("FAQs") with regard to family law and other legal issues.

Tips for making domestic contracts stronger

When it comes to preparing domestic contracts, such as marriage contracts and separation agreements, the last thing that anyone wants is for someone to find reasons to overturn the contract. There are things to be done to try and avoid having a contract overturned.

1. Financial Disclosure – In the case of domestic contracts, complete income information should be exchanged between the parties (at minimum, this includes three most recent Income Tax Returns and Notices of Assessment).

In the case of a separation agreement, both parties need to exchange details about all assets they owned and liabilities that they owed on date of marriage, date of separation and currently.

In the case of a marriage contract and since there has not yet been a separation, both parties need to exchange details about all assets they own and liabilities that they owe currently (and on date of marriage, if the parties are already married). Usually, this involves having both parties complete and swear a financial statement and to provide the supporting disclosure.

2. Independent Legal Advice – Each party should retain a different lawyer to provide independent legal advice on the contract. This means having the lawyer fully review the contract with you and ensuring that you understand all of the terms contained within the contract. Once complete, the lawyer will sign the contract stating that they did provide you with this advice.

3. Terms of the Contract – Both parties should take part in the drafting of the domestic contract. This means having input on the terms that are contained within the contract and requesting changes to any terms contained in the contract. This can be done by having the parties’ lawyers negotiate the terms through letters, a four-way meeting with both parties and their lawyers, during a mediation session, or by making changes to a draft contract being exchanged.

For more information on domestic contracts please contact the experienced family law lawyers at Krol & Krol by calling 905-707-3370.

When the matrimonial home is owned by a parent or a parent-in-law

With the rising real estate values, it is becoming more common that homes are either jointly or solely owned by one of the parties’ parents.

If the matrimonial home that the parties primarily reside in is solely owned by a 3rd party (for instance, the parent or parents of one of the parties in the dispute) and there is a clear understanding that the parties and the 3rd party are in a landlord-tenant relationship then this fact is not likely to create additional complexities in your matter.

However, if the matrimonial home that the parties primarily reside in is solely owned by a 3rd party, and the parties paid all bills and put a significant amount of family funds into the property, it can add certain complexities to your matter and may an impact on net family property.

Depending on the circumstances, the party whose parent is not an owner of the property, may be able to and may wish to make a trust claim or argue a joint family venture or unjust enrichment against the titled parent. More specifically, this claim may be made if a spouse is able to prove that the parties contributed to the home in ways that would distinguish them from a tenant. These types of contributions may include but are not limited to:

1. Major renovations or repairs done to the property, including a new roof, new furnace and/or air conditioner;

2. Paying the property taxes on the property;

3. Utility bills and other bills for the property listed in your or your spouse’s name; and,

4. Putting significant labour into the home above and beyond what a tenant would be expected to do for a rental property.

For more information, contact one of our experienced family law lawyers at Krol & Krol by calling 905.707.3370.

Matrimonial Home – Partition and Sale

The Court in Afolabi v. Fala dealt with a question that many courts in Ontario currently deal with on a daily basis; when should a judge refuse to grant a motion for partition and sale of the matrimonial home?

The Court in Afolabi and Fala brought down two specific cases that convey the standard by which a court may refuse the partition and sale of the matrimonial home; a prima facie right of each spouse.

In Latcham v. Latcham, Justice Emery set an extremely narrow standard by which a court will exercise its discretion to refuse the partition and sale of the Matrimonial home. Justice Emery explained:

The judicial trend in recent times has been to confine the discretion of the court to refuse an order for the partition or sale of jointly held property to a narrow standard. The Court of Appeal in Latcham v. Latcham (2002), 27 R.F.L. (5th) 358 (Ont. C.A.) confirmed that the proper standard for the exercise of judicial discretion to refuse partition under section 2 of the Partition Act required evidence of malicious, vexatious or oppressive conduct. The court held that this narrow standard for the exercise of discretion flowed from a joint owners’ prima facie right to partition.

Furthermore, in the case of Bailey v. Rhoden, the Court ruled that the essential and ultimate factor that courts should take into account when ruling on such a motion is whether granting the motion would cause such hardship as would amount to oppression.

To learn more about the matrimonial home as well as the services provided by Krol & Krol, call 905.707.3370 today.

Exclusive Possession

In domestic abuse cases, often the victimized party will request to take exclusive possession of the matrimonial home. This must be specifically outlined in the application for divorce. Also, unmarried parties are unable to request for exclusive possession of the matrimonial home.

Section 24(1)(b) of the Family Law Act tempers section 19 which states that both parties have an equal right in the matrimonial home, as the former states that a court may rule that one party possess the matrimonial home exclusively.

Section 24(3) of the Family Law Act sets out the criteria that must be considered before a court can award one of the parties exclusive possession of the matrimonial home, and one of which is if any violence was committed by a spouse against the other spouse or the children.

The court will distinguish an isolated incident of abuse from a pattern of abuse. Therefore, the application for divorce should clarify and specify when exclusive possession of the matrimonial is being requested based on a history of abuse. However, where the single incident involved physical violence, the court will consider the request for exclusive possession due to the precarious and dangerous situation of allowing the abuser back in the home.

To learn more about exclusive possession in Ontario  as well as the services provided by Krol & Krol, call 905.707.3370 today.

Launchbury v. Launchbury: What is the applicable law where the matrimonial home is put in one spouse’s name to shield the property from creditors?

Prior to Launchbury, it was often thought that if a matrimonial home was put into one spouse’s name for the purpose of shielding it from creditors, the non-titled spouse could not then come to the Court arguing that it was theirs in the context of family law.

According to the Ontario Court of Appeal in Launchbury, this is no longer so.

Facts: In Launchbury, the wife was employed by a telephone company and the husband was a constable with the policy. The matrimonial home was purchased from funds in a joint bank account. However, the home was put into the wife’s name alone in order to, among other reasons, shield it from potential creditors. The house was valued at $450,000.00 at the time of separation and the wife sold the home two years after separation for $586,000.00.

Issue: The husband claimed an interest in the value by way of resulting trust (i.e. he argued that the wife held one half of the matrimonial home for him).

Trial Decision: The trial judge found that because joint fund were used to purchase the home and the home was only placed in one of the parties’ names, the presumption of resulting trust was applicable. Justice Van Melle found that the wife here did not rebut the presumption of resulting trust. Furthermore, no creditors were prejudiced in this case and the husband did not intend to gift his half of the home to the wife.

Appeal: The Court of Appeal found that in this type of situation the presumption of resulting trust comes into play. According to this presumption, the burden was on the wife to rebut the presumption and show that a gift was intended by the husband. Moreover, given the dangerous work done by the husband, there was a legitimate purpose in placing the home in the wife’s name alone and no creditors were prejudiced in doing so.

How do courts determine whether to award occupation rent on a matrimonial home?

In Casey v. Casey, the Saskatchewan Court of Appeal reviewed the principles on the issue of occupation rent. The following are some of the factors that are relevant to the determination of an award of occupation rent on a matrimonial home in a family law case:

1. Generally, the conduct of both spouses, inclusive of a party failing to pay support, the circumstances under which the non-occupying spouse left the home, as well as if and when the non-occupying spouse moved for a sale of the matrimonial home.

2. While the conduct of parties is one factor to be taken into account, a spouse leaving the matrimonial home in a family law case unilaterally is not a bar to awarding occupation rent.

3. Where the children are residing and who is supporting the children.

4. If a demand for occupation rent was made in the family law case. If so, consideration is made as to when such a demand was made.

5. Any financial difficulties that the non-occupying spouse has encountered caused by being deprived of the ‘equality of the home’.

6. Who is paying for the expenses associated with the matrimonial home in the family law case (i.e. mortgage payments, property taxes, insurance.)

7. Has the occupying spouse increased or decreased the selling value of the matrimonial home?

8. Other competing claims in the matter that may serve to offset an award of occupation rent.

If there is no mortgage on the home, then occupation rent may be granted in order to equalize the parties’ accommodation expenditure post-separation (Sarvajc v. Turner (1996) 140 Sask. R. 101 (Sask. Q.B.)). The Saskatchewan Court of Appeal remarked that despite the fact that there are few decisions from the Court of Appeal on this issue, there are decisions stemming from the Queen’s Bench that acknowledge that occupation rent may, at times, be appropriate.

To learn more about occupation rent in the context of a family law case, contact Krol & Krol at 905.707.3370 for a consultation today.

2012-07-01 at 17-38-14 (1)

Should I move out of the matrimonial home?

At all times, individual are, of course, within their rights to leave the matrimonial home, for any reason. However, in certain situations and for strategic/tactical reasons, leaving the matrimonial home may be highly discouraged.

Depending on your case and the unique factors that surrounding a particular set of circumstances, leaving the matrimonial home can have a detrimental effect on the outcome of a case and may result in a situation that is to the other party’s favour.

Leaving the matrimonial home affects individuals when it comes to areas such as custody and access, possession of the matrimonial home, the financial aspects of the case, and so forth. For example, if you leave your children in the matrimonial home with your spouse and leave the property, this may have a negative effect on your position when establishing custody and access rights.

There are however circumstances whereby leaving the matrimonial home is necessary and recommended, such as situations whereby one spouse faces domestic violence, physical or verbal abuse, etc. In those sorts of situations, for your own protection as well as for the protection of your children you may decide that it is best to leave the matrimonial home. It ought to be noted that it is also possible that, depending on the circumstances, you may be able to obtain a court order for exclusive possession of the matrimonial home and ensure that you are the party that will continue to care for your kids while an abusive spouse is kept away from you, the children, and the matrimonial home.

The decision to stay or leave the matrimonial home can have important consequences on your family law matter. It is important to consult with an experienced and knowledgeable family lawyer in Ontario to determine the the best course of action to take with respect to the decision to stay or leave the matrimonial home.

For more information on issues involving your matrimonial home, and and to schedule a consultation with one of our experienced Toronto family law lawyers, contact Krol & Krol at 905.707.3370.

Can I change the locks to the matrimonial home?

As the sole spouse on title, can I change the locks to the matrimonial home?

If the property in question is the home that you and your spouse lived in at the date of separation, this home will be considered a “matrimonial home” under the Family Law Act.

According to the Family Law Act, irrespective of whether the matrimonial home is jointly owned or if only one spouse in on title, both spouses have a right to possession of the matrimonial home.

Despite the fact that the property may be registered solely in your name, you will not simply have the right to change the locks and bar your ex-spouse from continuing to reside in the matrimonial home.

That being said, there are circumstances that may warrant the granting of “exclusive possession” of the matrimonial home to one spouse to the deprivation of the other spouse. This means that until the parties arrive at a resolution of the matter, or the court makes a final order in the matter, there are circumstances where it may be appropriate for the court to grant a temporary order allowing one spouse to exclusively possess the home.  An individual may be granted exclusive possession of the matrimonial home for a variety of reasons. For example, one may be granted exclusive possession of the matrimonial home following an assault by one spouse against the other spouse or a child.

Once one of the parties is granted an order providing for the exclusive possession of the matrimonial home, the other party may not enter the matrimonial home.

For more information on the matrimonial home, exclusive possession with respect to the matrimonial home, or your family law matter generally, contact Krol & Krol at 905.707.3370 to schedule a consultation with one of our experienced family law lawyers.

What is a matrimonial home in family law?

Matrimonial Home Definition: 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 (s. 18(1) of the Family Law Act).

Parties may have more than one matrimonial home in family law.

A matrimonial home in family law is significant as it is given special treatment in the context of married spouses in two distinct ways:

1. Both spouses have an equal right to possession of the matrimonial home.

2. If a home is a matrimonial home at the time of separation and was the same home that the spouses resided in on the date of marriage and if it is only registered in one spouse’s name, the spouse on title cannot deduct the marriage date value of the matrimonial home when calculating his or her net family property. However, the value of the matrimonial home is still included as a valuation date asset of the title holder. If all else is equal, the result of this is that the titled spouse shares half the value of the house as of the date of separation with the non-titled spouse.

The solicitors at Krol & Krol have experience with the variety of issues that can surround a matrimonial home. For a consultation with one of our solicitors, call 905.707.3370 today.