Can a marriage contract exclude the matrimonial home from equalization in Ontario?

Not entirely. The Family Law Act contains special protections for the matrimonial home that limit what a marriage contract can do. While parties can contract out of many property rights, the statute expressly provides that a spouse cannot, by a marriage contract, oust the other spouse's right to possession of the matrimonial home during the marriage. Spouses have equal rights to possession of the matrimonial home regardless of who holds title.

However, the parties can address what happens to the matrimonial home at separation or divorce. A marriage contract can specify, for example, that the home is owned in certain proportions, that one spouse will have the right to purchase the other's interest, or how the sale proceeds will be divided. These kinds of clauses deal with the ultimate disposition of the home after marriage rather than the right to live in it during the marriage, and are generally enforceable.

What complicates the home specifically is the Family Law Act's rule that the full value of the matrimonial home at the date of separation is brought into the equalization calculation — unlike other property, there is no deduction for the value at the start of the marriage. A marriage contract can address how the home value is treated in an equalization calculation, but the drafting must be precise.