Your Name Is Not on the Title: Home Rights in Ontario Separation

Being left off the title can make you feel as though you have no say about the family home. In Ontario, title is only part of the picture. Married spouses have protections that apply no matter whose name appears on the deed.

This article separates two questions: who can live in the home, and how its value is shared. It also explains how things differ for unmarried couples.

Your right to live in the home

Under the Family Law Act, both spouses have an equal right to possession of a matrimonial home, whether or not their name is on title. A matrimonial home is property in which a spouse has an interest and that is or was ordinarily occupied by the spouses as their family residence, judged at separation if you have separated.

If only one spouse has an interest in the home, the other spouse's right of possession is personal as against the owning spouse. It ends when they stop being spouses, unless a separation agreement or court order says otherwise. A court may also order that one spouse be given exclusive possession, considering things like the children's best interests, other suitable and affordable housing, and any violence.

Sharing the value of the home

When a divorce is granted, a marriage is declared a nullity, or spouses separate with no reasonable prospect of resuming cohabitation, the spouse with the lower net family property is entitled to one-half of the difference between the two. Net family property is the value of what a spouse owns on the valuation date, except excluded property, minus debts and certain date-of-marriage amounts.

This means the home can be counted in the owning spouse's net family property even though you are not on title. Your claim is to an equalizing payment, not automatically to half the house itself. If the owning spouse's net family property is lower than zero, it is treated as zero.

Special rules for the family home

A spouse can usually deduct the value of property owned on the date of marriage. That deduction is not allowed for a property that is a matrimonial home, so the family home's full value is shared even if one spouse owned it before the marriage.

Gifts and inheritances from a third person received after the marriage are normally excluded, but this exclusion does not apply to a matrimonial home. Excluded money used to buy or pay down the family home loses its protection.

The spouse claiming a deduction or exclusion has the onus of proving it.

If you are common-law

Equalization applies only to a spouse as defined in the Act, which covers people married to each other, or who entered a void or voidable marriage in good faith. It does not include unmarried cohabitants, so the right of possession of the matrimonial home does not apply to them either.

Common-law couples are not legally required to split property acquired while living together, and property belongs to whoever bought it. A partner who contributed to the other's property may have a claim to part of it, which may require going to court. The time limits for those claims differ and should be checked with a lawyer. Support rights are separate, and unmarried partners can qualify for support in some situations.

What to do next

An equalization application must be brought by the earliest of two years after the marriage ends by divorce or nullity, six years after separation with no reasonable prospect of resuming cohabitation, or six months after the first spouse's death. A court may extend a time limit in limited circumstances.

• Write down your date of marriage and your date of separation.
• Collect proof of the home's purchase, mortgage and any money you contributed.
• Gather statements for accounts and investments close to the separation date.
• Note any gifts or inheritances that went into the home.
• Speak with an Ontario family lawyer before signing anything about the home.

Frequently asked questions