Ownership of the matrimonial home: Title matters

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BY: VALERIE DYE 

A matrimonial home may be owned either by one spouse only or by both spouses either jointly or as tenants in common (most married couples own their home jointly). Regardless of whether or not a matrimonial home is owned by one spouse or both spouses, if there is a separation or divorce, the spouse who does not own the home still has rights with regard to equalization. As such, the matrimonial home will be taken into consideration in determining the amount of equalization payment that is due to the non-owning spouse. Suppose, for instance, a married couple, spouse A and spouse B, reside in a matrimonial home that is valued at $600.000. The home is owned only by spouse A and together with other assets spouse A has a net family property value of $800,000. Spouse B has a net family property value of $200,000. Since spouse A’s net family property value is higher than spouse B’s by $600,000 spouse A will have to pay half of that amount to spouse B. As such the amount to be paid to spouse B would be $300,000. At the end of the equalization process, both spouses will have similar net family property values ($500,000 each).

Consequently, the non-titled spouse reaps the benefit of the value of the matrimonial home despite not being on the title.

Despite this benefit, various other scenarios demonstrate that title matters. The titled spouse has various rights that are not open to a non-titled spouse.

One such right is that a titled spouse can obtain a court order to force the sale of the matrimonial home if the other spouse refuses to cooperate in the selling the home. The Partition Act states that: ‘Any person interested in land …may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested’.

In cases such as Giglio vs Giglio and Hill vs Hill the courts have outlined who can obtain an order for partition and sale. In Hill vs Hill, the court stated that the right of a joint owner to the sale of a jointly held property stems directly from ownership of that property. Similar, in Alves v DeSouza the Ontario Superior Court found that the husband was not entitled to obtain a court order to have the property partitioned or sold as he was not an owner of the property.

Another situation where title to matrimonial home matters is where the value of the property increases after the date of separation.

Where the property is owned by only one spouse the other spouse cannot benefit from the increase in value that may occur between the date of separation and the trial date.  In Cerenzia vs Cerenzia  the wife owned the matrimonial home prior to marriage. The home increased in value by almost $300,000 between the date of separation and the trial date. The court held that since the husband was not a beneficial owner of the property he was only entitled to a share of the value as at the separation date and not a share of the increased value.  On the other hand, where the property is owned by both spouses, they will both benefit from any increase in value that may occur between the date of separation and the date of trial or the date when the division of assets is finalized.

Although the above scenarios show that title matters, a non-titled spouse may yet be able to prove ownership in the matrimonial home despite not being on the title.

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