Can a Cottage Be a Matrimonial Home in Ontario?

Many Ontario couples have a cottage, a second home or a property that has been in one family for years. When a relationship ends, a common question is whether that property counts as a matrimonial home, and why it matters.

The answer depends on the facts, especially how the property was used. This article explains the general rules so you know what to ask.

What makes a property a matrimonial home

A matrimonial home is any property in which a spouse has an interest and that is or was ordinarily occupied by the spouses as their family residence. If they have separated, this is judged at the time of separation. A couple can have more than one matrimonial home.

So a cottage can qualify, but whether it does depends on whether it was ordinarily occupied as a family residence. A property used only occasionally, or rented out, raises a factual question that a lawyer can help assess.

Owning shares in a corporation that give a right to occupy a housing unit counts as an interest in that unit. A court can also decide whether a property is a matrimonial home.

Rights that come with the status

• Both spouses have an equal right to possession of a matrimonial home, whether or not their name is on title.
• If only one spouse has an interest, the other spouse's right of possession is personal and ends when they stop being spouses, unless a separation agreement or court order says otherwise.
• A spouse may not sell or mortgage an interest in a matrimonial home unless the other spouse joins in or consents, released their rights in a separation agreement, a court order authorizes it, or a different property was designated by both spouses and that designation is registered.
• A court may order exclusive possession of the matrimonial home, considering factors such as the best interests of the children, the availability of other suitable and affordable housing, and any violence.

A court can set aside a sale or mortgage made in breach of these rules, but not if the buyer or lender acquired the interest for value, in good faith and without notice that it was a matrimonial home. A marriage contract term trying to limit these rights is unenforceable.

Designating one home

One or both spouses may designate a property as a matrimonial home, and the designation may be registered in the proper land registry office.

When a designation made by both spouses is registered, any other property that was a matrimonial home but is not designated by both stops being one. A designation by only one spouse does not release other properties; they remain matrimonial homes if they meet the test.

Effect on dividing property

The matrimonial home status matters for equalization. No date-of-marriage deduction is allowed for a property that is a matrimonial home, so its full value is shared even if one spouse owned it before the marriage.

Property received as a gift or inheritance is normally excluded, but that exclusion does not apply to a matrimonial home. If a gift or inheritance is used to buy or pay down the family home, it loses its protection.

Unmarried partners are not spouses for these rules, so the right of possession does not apply to them.

What to do next

• Write down how the cottage was used, by whom and how often, especially around separation.
• Check who is on title and whether any designation was registered.
• Before any sale or mortgage, check whether the other spouse's consent, a release in a separation agreement, a court order, or a registered designation of a different property by both spouses applies.
• Gather deeds, mortgage documents and valuations.
• Ask a lawyer whether the cottage is a matrimonial home before you sign anything.

Whether a cottage or rental is a matrimonial home depends on the facts, and valuing it needs proper evidence.

Frequently asked questions