Property Division When Spouses Separate Under One Roof in Ontario

Many couples cannot afford to live apart right away. You may be separated in every way that matters but still share a home, a mortgage and a kitchen.

This article explains how that arrangement can affect the date your property is valued, what rights you each have in the home, and what a court can do if living together becomes unworkable.

Why the separation date matters

Net family property is measured on the valuation date. That date is the earliest of several events: separation with no reasonable prospect of resuming cohabitation, the date a divorce is granted, the date the marriage is declared a nullity, the date a spouse starts an improvident-depletion application that is later granted, or the day before a spouse dies.

Values are calculated as of close of business on that date. Assets and debts that change after the valuation date generally do not change the calculation.

Can you be separated while still living together?

One of the events that sets the valuation date is separation with no reasonable prospect of resuming cohabitation, and the valuation date is the earliest of the events the Act lists. Whether a couple under one roof meets that test depends on the facts, and spouses often disagree about the date.

Because the date affects what is counted, it is worth recording clearly when the relationship ended. The following can be useful evidence, though none is a guarantee.

• Messages or emails in which you or your spouse state the relationship is over.
• Separate bedrooms, separate finances and the end of shared social life.
• A written statement or agreement that you both signed setting out a separation date.
• Notes on who pays which household bills.

Rights to the home while you both live there

Both spouses have an equal right to possession of a matrimonial home, whoever holds title. Moving out does not end that statutory right. A matrimonial home is property that is, or was at separation, ordinarily occupied by the spouses as their family residence.

If only one spouse owns the home, the other spouse's right of possession ends when they stop being spouses, for example on divorce, unless a separation agreement or court order provides otherwise.

Also, no spouse may sell or mortgage an interest in the matrimonial home unless the other joins in or consents, the other has released their rights by separation agreement, a court authorizes it, or another property has been properly designated as the matrimonial home.

When living together stops working

Regardless of who owns the home and its contents, a court may order that one spouse have exclusive possession. Interim orders are available on motion. The court looks at factors including the best interests of the children, the financial position of both spouses, whether other suitable and affordable housing is available, and any violence committed by a spouse against the other spouse or the children.

To protect a property claim, a court may restrain the depletion of a spouse's property that would impair or defeat a claim. In an equalization application it may also make orders restraining dealings with property or requiring security. Matrimonial home matters under Part II of the Family Law Act are heard by the Superior Court of Justice, including its Family Court branch where it sits, and not the Ontario Court of Justice.

If you are worried about your safety, get help right away. A lawyer can explain what urgent options exist.

What to do next

• Write down the date you believe the relationship ended and keep supporting messages.
• List what you each own and owe, and keep statements close to that date.
• Do not sell, borrow against or move property without legal advice.
• If you are living separate and apart, consider a written separation agreement about property and other rights and obligations.
• Ask a lawyer before you decide, since the date can be disputed and time limits apply.

An equalization application generally cannot be brought after the earliest of three dates: two years after a divorce or judgment of nullity, six years after separation with no reasonable prospect of resuming cohabitation, or six months after the first spouse's death. The court may extend a time limit if there are apparent grounds for relief, the relief is unavailable because of delay incurred in good faith, and no person will suffer substantial prejudice because of the delay.

A separation agreement is open to two people who cohabited and are living separate and apart, and it can cover ownership or division of property. It can also release a spouse's matrimonial home rights, which allows a later sale or mortgage without that spouse's consent.

Frequently asked questions