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 the case. 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 at the time of separation and the wife sold the home two years after separation for $586,000. 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 funds were used to purchase the home and the home was only placed in one of the parties' names, the presumption of resulting trust...
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: 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. 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. Where the children are residing and who is supporting the children. 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. Any financial difficulties that the non-occupying spouse has encountered caused by being deprived of the equality of the home. Who is paying for the expenses associated with the matrimonial home in the family law case (i.e. mortgage payments, property taxes, insurance). Has the occupying spouse increased...
Deciding whether to move out of the matrimonial home is one of the toughest choices you’ll face — emotionally, practically, and legally. Depending on your case and the unique factors 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. In this post, we’ll explain what the law says, how your decision can affect custody, property rights, and financial responsibilities, and when it might make sense to stay or leave. What Is the Matrimonial Home? In Ontario, the matrimonial home is any residence that you and your spouse lived in together as your family home at the time of separation, regardless of whose name is on the title or mortgage. The law treats the matrimonial home differently than other property. Both spouses have an equal right to possess and remain in the home until a court order or agreement says otherwise. How Leaving the Home Can Affect Your Case Leaving the matrimonial home affects individuals when it comes to areas such as custody and access, possession of the matrimonial home, and the financial aspects of the...
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...
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: Both spouses have an equal right to possession of the matrimonial home. 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...
A matrimonial home in family law is defined as every property in which a person has an interest 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). In family law, parties may have more than one matrimonial home (which may include a ski chalet or a condominium in the United States). Matrimonial homes are significant in family law as they are given special treatment in the context of married spouses in two distinct ways: Both spouses have an equal right to possession of the matrimonial home. See below for an in-depth explanation of the possessory rights of spouses relating to the matrimonial home. If a home is a matrimonial home at the time of separation, is the same home that the spouses resided in on the date of marriage, and 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...
Both married spouses have an equal right to possession of a matrimonial home. In other words, after separation, both spouses have a right to live in the matrimonial home even if title to the home is in one spouse's name alone (s. 19(1) of the Family Law Act). Where only one spouse's name is registered on title, the other spouse's interest can only be enforced against the titled spouse, and it is extinguished once the parties are divorced or once an annulment takes place, unless a court order or separation agreement outlines otherwise (s. 19(2) of the Family Law Act). Furthermore, regardless of the ownership of the matrimonial home and a spouse's right of possession, the court may on application "direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs ... " (s. 24(1)(b) of the Family Law Act). When determining whether to make an order for exclusive possession, courts will consider the following criteria (s. 24(3) of the Family Law Act): The best interests of the children affected; Any existing orders relating to equalization (or 'family property') and existing orders relating to support; The financial position of both of the spouses; Any written agreement that...
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 third 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 third 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 third 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. Our experienced family law team can help you understand your rights and protect your interests. Matrimonial Home Rights and Risks in Parent- or Parent-in-Law–Owned Homes 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...
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'...
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...
