BY: VALERIE DYE
Most persons are aware of the legal consequences that attach to a matrimonial home when parties separate. The main consequence of a home being deemed a matrimonial home is that both spouses are entitled to possession of the matrimonial home even though it may be owned only by one spouse. This entitlement continues until they cease to be spouses. Another consequence is that the matrimonial home cannot be sold or encumbered without the consent of the other spouse and it also becomes part of the net family property of the party who owns it so that it will be taken into account for the purpose of property division.
Quite often spouses may have more than one matrimonial homes. One may be the main residence and the other may be a cottage. Section 18 of the Family Law Act describes a matrimonial home as any home in which a person has an interest and which is occupied by the parties as their family residence up to the time of separation.
Where spouses have more than one matrimonial home all such homes are included in the party’s net family properties for the sake of property division and both parties are entitled to possession of all the homes until after the divorce. Thus, if Peter owned a home in Toronto and a cottage in Muskoka prior to his marriage to Jane and he and Jane share their time between both properties, then both properties are matrimonial homes and both will be subjected to property division in the event of a divorce.
In such cases, it is possible for parties to designate only one of their homes as a matrimonial home. To do this it is necessary to file certain documents in court and register it against the property. Once one property is designated as a matrimonial home then all other properties cease to be matrimonial homes. In the case of Peter and Jane. If they together file a designation indicating that the cottage is the matrimonial home, then in the event of a separation or divorce only the cottage will be considered as part of Peter’s net family property (since the other home was owned prior to marriage).
Ontario legislation also allows only one spouse to file a document designating a particular property as a matrimonial home. When only one spouse files a designation the results are different from when both spouses together file a designation. According to bulletin 86001 when a single spouse files a document indicating that a particular property is a matrimonial home it does not prevent the other properties from also being considered as matrimonial homes. Thus, if Jane files a document designating the Toronto property as a matrimonial home then both the Toronto property and the cottage will be deemed matrimonial homes.
In this instance, Jane’s reason for filing a designation would be to ensure that the property is not sold or encumbered without her consent.
A designation can be canceled at any time. When both spouses file a designation and they subsequently cancel it, then all other residences will revert to being considered as matrimonial homes. A designation filed by a single spouse can only be canceled by that spouse. If the other spouse wishes to have that designation canceled, he or she may have to obtain a court order before this is done.