What Happens to a Pre-Marriage Home After Separation in Ontario?

You bought your home before the wedding, so it probably feels like yours alone. After separation, though, Ontario treats a family home differently from most other property.

Two separate questions come up: how the home's value counts in the property division, and who can live in it and what can be done with it while things are sorted out.

How the home's value is counted

When married spouses separate, the spouse whose net family property is smaller is entitled to one-half of the difference between the two net family properties. A court may award a spouse more or less than half the difference if equalizing them would be unconscionable, and one factor it considers is a spouse's intentional or reckless depletion of their net family property. Property you owned at separation is valued as of the day you separated, and property you owned on the wedding day is valued as of the date of marriage.

Ontario's guidance says debts at marriage are subtracted from property owned at marriage, except debts tied to the family home, such as a mortgage. The remaining mortgage on separation is a debt that reduces a spouse's net family property.

Why a pre-marriage home is treated differently

The family home carries a special sharing rule. Its full value must be shared even if one spouse owned it before the marriage or received it as a gift or inheritance, unless the spouses agree otherwise.

This differs from other property. Property acquired during the marriage by gift or inheritance from a third person, personal-injury damages, and property the spouses agreed in a domestic contract to exclude are not included in net family property, but that exclusion does not apply to a matrimonial home.

The matrimonial home rules

A matrimonial home is every property in which a spouse has an interest and that is, or was at the time of separation, ordinarily occupied by the spouses as their family residence. These rules apply whoever holds title.

• Both spouses have an equal right to possession of the home, and without a court order a non-owning married spouse cannot be put out simply because the other spouse owns it.
• No spouse may sell or mortgage an interest in the home unless the other spouse joins in or consents, has released their rights by separation agreement, a court order authorizes it, or another property is validly designated and registered as the matrimonial home.
• Where only one spouse has an interest in the home, the other spouse's right of possession is personal as against the owner and ends when they stop being spouses, unless a separation agreement or court order provides otherwise.

Exclusive possession of the home

Regardless of who owns the home, a court may order that one spouse be given exclusive possession of it, or part of it, for a period the court directs. It may also order periodic payments, deal with the contents, and order payment of repairs and maintenance. A temporary or interim order can be made on a motion.

In deciding, the court must consider these matters:

• the best interests of the children affected
• existing property and support orders
• both spouses' financial positions
• any written agreement
• whether other suitable and affordable accommodation is available
• any violence by a spouse against the other spouse or the children

On the children's interests, the court considers the possible disruptive effects of moving and the child's views and preferences if they can reasonably be ascertained. A person in danger should call 911 or local police immediately.

If you are not married

The matrimonial home possession rights apply to spouses as defined in the Family Law Act, meaning married people. Ontario's guidance tells people who are not married to contact a lawyer about their rights and options regarding the home. Your position will turn on factors such as who holds title, so get advice before making decisions.

What to do next

• Gather the deed, mortgage statements and proof of when you bought the home.
• Note the date you married and the date you separated.
• Do not sell or mortgage the home without checking whether your spouse's consent is needed.
• If you reach an agreement on the home, make sure it is in writing, signed and witnessed.
• Speak with a lawyer about exclusive possession or the home's value if you and your spouse disagree.

Frequently asked questions