Matrimonial Home: Possession After Separation


The dissolution of a marriage is a complex and emotionally charged process, and one of the key considerations for couples going through a divorce in Ontario is the right to remain in the matrimonial home. The province has specific laws and regulations that govern the division of property, including the family home. Understanding these rights is crucial for individuals navigating the often challenging terrain of divorce.


The Family Law Act:

In Ontario, the Family Law Act (FLA) is the primary legislation that governs the rights and responsibilities of spouses during a divorce. Under the FLA, the matrimonial home is granted a special status, and both spouses may have certain rights related to its possession and ownership.


Definition of Matrimonial Home:

The FLA defines the matrimonial home as any home that was at the time of separation, ordinarily occupied by the married person and his or her married spouse as their family residence.

This broad definition encompasses various types of properties, including houses, condominiums, and even vacation homes, provided they meet the criteria outlined in the legislation. There can also be more than one matrimonial home, for instance if the parties regularly used a cottage property and also their principal residence.


Possession of the Matrimonial Home:

During the divorce process, the right to possession of the matrimonial home can become a contentious issue. The FLA grants both married spouses an equal right to possession, regardless of legal ownership. This means that even if the home is solely in one spouse’s name, the other spouse still has the right to live there.

However, it’s important to note that this right to possession is not absolute and may be subject to court orders, especially in cases involving domestic violence or other exceptional circumstances. Courts have the discretion to issue exclusive possession orders, temporarily granting one spouse sole occupancy of the matrimonial home.

If the matrimonial home is leased under the Residential Tenancies Act, then similar protections would apply that are subject to landlord tenant law.

The right to possession is also complicated if the home is not owned or covered under the Residential Tenancies Act.

If you are residing with your in-laws, then the in-laws may be able to remove you from their home.

If the home you are residing in military housing and is not covered under the Residential Tenancies Act, then it will be subject to the rules and policies of military housing and it may be possible for the military spouse who is on the lease to remove the military or non-military spouse that is not on the lease.

If the property is a student rental, and not covered under the Residential Tenancies Act, for example, if one spouse is a graduate or medical student who lives in a home that is subsidized through their school and part of a school program, and the school’s housing policies apply, then it may be possible to evict the spouse who is not on the lease.

Possessing the matrimonial home after the date of separation can result in additional financial legal obligations such as occupational rent or contribution to home expenses in varying proportions depending on the living arrangements between spouses.


Equalization of Net Family Property:

When dividing assets during a divorce, the concept of equalization plays a significant role. Ontario’s family law system seeks to ensure that each spouse receives an equal share of the net family property accumulated during the marriage.

The matrimonial home is included in the calculation of net family property, and its value is taken into account when determining the equalization payment owed by one spouse to the other. This ensures a fair distribution of assets, even if one spouse continues to live in the home after the separation.

If the matrimonial home is jointly owned, the courts will typically consider its present day value rather than its value on the date of separation in completing an equalization calculation. However, if it is owned by one party only, they typically consider the date of separation value of the home that can be valued by a certified home appraiser.


Navigating the right to remain in the matrimonial home during a divorce in Ontario involves understanding the intricacies of the Family Law Act. Both spouses have rights related to the possession and equalization of the matrimonial home, and these rights can be complex and subject to various considerations.

Seeking legal advice from a family law professional is crucial to ensuring a fair and equitable resolution. An experienced lawyer can guide individuals through the legal processes, help protect their rights, and provide clarity on the specific circumstances of their case. Understanding the right to remain in the matrimonial home is a vital step toward achieving a just and amicable resolution during a challenging period of transition.


Additional Reading:

  1. Property Division
  2. Divorce With Children
  3. Divorce Without Children
  4. Contested Divorce