Nobody keeps the matrimonial home automatically. Under Ontario's Family Law Act, both married spouses have an equal right to live there, whoever is on title, until an agreement or court order says otherwise. In the end, one spouse buys the other out, the home is sold, or a court decides, and its value is shared through equalization.
How does the matrimonial home work in Ontario, step by step?
Two separate questions sit behind "who keeps the house": who may live in it while the separation is sorted out, and who ends up owning it and what each spouse receives for its value. The Family Law Act answers the first question in Part II (sections 17 to 28) and the second in Part I, through equalization. Our property division page gives the wider picture; this page focuses on the home itself.
In practice, the matrimonial home is dealt with in roughly this order:
- Identify every matrimonial home. Under section 18(1), a property is a matrimonial home if either spouse has an interest in it and the spouses ordinarily occupied it as their family residence, or did so at the time they separated. A couple can have more than one.
- Know your right to live there. Section 19(1) gives both spouses an equal right to possession. A spouse who is not on title can stay, and the owner cannot lock them out without a court order.
- Leave the title alone. Neither spouse can sell, transfer or mortgage a matrimonial home without the other's consent, a release in a separation agreement, or a court order (s. 21(1)). Our page on selling or mortgaging the home without consent covers that rule in detail.
- Value it for equalization. The home's value on the valuation date goes into the owner's net family property, with special rules that make it count in full. The whole calculation is set out in our guide to how property is divided in Ontario.
- Decide where everyone lives in the meantime. If you cannot agree, a court can give one spouse exclusive possession of the matrimonial home for a period, regardless of who owns it (s. 24).
- Settle ownership. Most couples agree on a buyout or a sale in a separation agreement. If they cannot, the Superior Court of Justice decides; the Ontario Court of Justice cannot hear matrimonial home or equalization claims (ss. 4(1) and 17).
In Toronto, those claims go to the Superior Court of Justice family court, described in our guide to what to expect at the Superior Court of Justice in Toronto.
What makes a property a matrimonial home?
The test in section 18(1) is about use, not title. Three practical points follow from its wording.
- The name on title does not matter for status. A home owned only by one spouse, or owned by one spouse together with a parent, is still a matrimonial home if the couple lived in it as their family residence.
- Separation fixes the picture. Once you separate, the question is what the family was using as its residence on that date. Moving out afterwards does not change the home's status.
- A family can have more than one. A cottage the family ordinarily used as a residence can qualify alongside the city home. If both spouses sign and register a designation of one property under section 20, any property not designated by both stops being a matrimonial home (s. 20(4)). The form is Form 1 under R.R.O. 1990, Reg. 367.
Two special cases are written into the Act. Shares in a housing co-operative that entitle the owner to occupy a unit count as an interest in that unit (s. 18(2)). And where a home sits on land used mainly for something else, such as a farm, only the part reasonably needed to use and enjoy the residence is the matrimonial home (s. 18(3)). Part II also applies only to homes situated in Ontario (s. 28(1)).
Title, possession and value are three different things
Most confusion comes from mixing up who owns the home, who may live in it and how its value is shared.
| Situation | Right to live there | Can that spouse sell or mortgage alone? | How the value is counted |
|---|---|---|---|
| Home in one spouse's name only | Both spouses have an equal right (s. 19(1)) | No: needs the other spouse's consent, a separation agreement release or a court order (s. 21(1)) | Full value, less the mortgage, in the owner's net family property |
| Home owned jointly by both spouses | Both spouses have an equal right (s. 19(1)) | No: neither can deal with their interest without the other (s. 21(1)) | Each spouse's share counts in that spouse's net family property |
| Home owned before the marriage | Both spouses have an equal right if it became the family residence | No, while it remains a matrimonial home | No wedding-day deduction if it is still a matrimonial home on the valuation date (s. 4(1)) |
| Home bought with a gift or inheritance | Both spouses have an equal right | No, while it remains a matrimonial home | The gift or inheritance exclusion does not apply to a matrimonial home (s. 4(2), paras. 1 and 5) |
| Non-owner spouse after a divorce | Ends when they stop being spouses, unless an agreement or order says otherwise (s. 19(2)) | Not applicable | Settled through equalization |
The value rules are what make the home so important to the final numbers. Normally, each spouse deducts the net value of what they owned on the wedding day. That deduction is not allowed for a property that is a matrimonial home on the valuation date, and debts tied to buying or improving it are left out of the wedding-day figure too (s. 4(1), definition of "net family property"). Gifts and inheritances lose their protection once they are in the home. Our page on property excluded from equalization shows how that happens. Our guide to calculating net family property walks through the full arithmetic.
How couples decide who keeps the home
Possession rights hold things steady but do not decide the outcome. There are three usual endings.
- A buyout. One spouse keeps the home and pays the other for their interest, often by refinancing. With a jointly owned home, the buyout covers the departing spouse's share of the equity. With a home owned by one spouse, the home stays in that spouse's net family property, and the buyout is usually folded into the equalization payment.
- A sale. The home is listed, the mortgage and selling costs are paid from the proceeds, and the balance is divided according to ownership and the equalization calculation.
- A court order. In an equalization case, the court can order one spouse to pay the other, order property transferred to a spouse, or order property partitioned or sold (s. 9(1)). In a dispute over ownership or possession of particular property, section 10(1) gives similar powers.
The children's living arrangements often drive these choices. Where the children will live and how parenting time is shared is decided under different rules, explained in our page on decision-making responsibility and parenting time. But a court deciding temporary possession must consider the best interests of the children affected (s. 24(3)(a)), so the two issues travel together.
What changes the answer
- An exclusive possession order. Despite the equal right in section 19, a court can give one spouse sole possession for a set period and make related orders about the contents, mortgage payments and repairs (s. 24(1)). The factors in section 24(3) include the children's best interests, the spouses' finances, other housing and any violence.
- A divorce. Where only one spouse owns the home, the other spouse's possession right ends when they cease to be spouses, unless a separation agreement or court order provides otherwise (s. 19(2)(b)). A divorce also cancels a registered designation once it is registered or deposited (s. 20(6)(b)).
- A marriage contract. A clause in a marriage contract that tries to limit a spouse's Part II rights, such as the right to possession, is unenforceable (s. 52(2)). A separation agreement, by contrast, can release those rights (s. 21(1)(b)). Agreements can also be challenged; see our page on setting aside a marriage contract or separation agreement.
- Not being married. Part II protects "spouses" as defined in section 1(1), meaning people who are married to each other (or who entered a void or voidable marriage in good faith). Common-law partners do not get these possession or consent rights; our article on property division for common-law couples explains the claims they use instead.
- A death. If a spouse dies owning the home as a joint tenant with a third person, the joint tenancy is treated as severed just before death (s. 26(1)). A surviving spouse with no ownership interest who is living there can stay against the estate, rent free, for 60 days (s. 26(2)). Our page on what happens to property division when a spouse dies covers the rest.
- A home outside Ontario. Part II applies only to matrimonial homes in Ontario (s. 28(1)). A home elsewhere still counts in net family property but is not covered by the Ontario possession and consent rules.
A worked example
For example, imagine a hypothetical couple, Priya and Daniel. Daniel bought a house before the wedding. On the wedding day it was worth $500,000 with a $300,000 mortgage, so his net equity was $200,000. The family lived there throughout the marriage. On the valuation date the house is worth $900,000 with a $250,000 mortgage, giving equity of $650,000. Daniel has no other significant assets or debts. Priya owned nothing on the wedding day and now has $50,000 in an RRSP. To keep things simple, the example ignores selling costs and taxes.
- Because the house is still the matrimonial home on the valuation date, Daniel cannot deduct the $200,000 he had in it on the wedding day. His net family property is the full $650,000.
- Priya's net family property is $50,000.
- The difference is $600,000, so Daniel owes Priya an equalization payment of half that: $300,000.
If the same property had been a rental that the family never lived in, Daniel would deduct the $200,000. His figure would be $450,000, the difference $400,000, and the payment $200,000. The matrimonial home rule adds $100,000 to what he owes.
Until they settle, Priya has the same right as Daniel to live in the house, even though she is not on title, and Daniel cannot sell or refinance it without her. If Priya wants to keep the house, one way to settle would be for Daniel to transfer it to her, with the $300,000 he owes her credited against its $650,000 equity. She would then need to pay Daniel the other $350,000 and take over or refinance the $250,000 mortgage.
Common mistakes with the matrimonial home
- Assuming the spouse on title decides who stays. Ownership does not override the equal right to possession in section 19(1). Only an agreement or court order changes it.
- Changing the locks. Locking a spouse out of a matrimonial home without a court order cuts across their statutory right under section 19(1). If one of you needs the other out, the route is a court order under section 24.
- Forgetting the cottage. If the family ordinarily used a second property as a residence, it may also be a matrimonial home, with the same consent and possession rules.
- Claiming a wedding-day deduction for the home. A spouse who owned the home before the marriage loses that deduction if it is still a matrimonial home on the valuation date.
- Signing refinancing papers without reading them. A spouse's signature or consent is what allows a mortgage or line of credit on the home. Signing a consent can give up protection you may need later.
What to do this week
- Write down every property either of you has an interest in, and which ones the family used as a residence on the date you separated.
- Find the deed or transfer, the latest mortgage statement, any line of credit secured on the home, and the most recent property tax bill.
- Note the date you separated and keep evidence of it, such as emails or a lease for a new place.
- If you owned the home before the marriage, gather the purchase records and the wedding-day mortgage balance.
- Do not sign anything that sells, transfers or borrows against the home until you understand what you are giving up.
- Agree in writing, if you can, on who stays in the home for now and who pays the mortgage, taxes and insurance.
- Book a free consultation through our contact page if you cannot agree on possession or a buyout.
Frequently asked questions
Can my spouse force me to move out?
Not on their own. Both spouses have an equal right to possession of a matrimonial home (s. 19(1)). Only a court order for exclusive possession, or an agreement you sign, can require you to leave.
If I move out, do I lose my share of the house?
No. Your ownership interest and your equalization entitlement do not depend on where you live. Moving out also does not change whether the property was the matrimonial home, because that is judged at the time of separation (s. 18(1)).
Who pays the mortgage until the house is sold?
The spouses can agree on it. If they cannot, a court can order a spouse to pay all or part of the repair and maintenance costs and other liabilities for the home, or to make periodic payments to the other spouse for those purposes (s. 24(1)(e)).
Does the house count if my parents gave us the down payment?
Yes. Gifts from a third person are usually excluded from net family property, but not when they are a matrimonial home or have been traced into one (s. 4(2), paras. 1 and 5). Money put into the home is counted with the rest of its value.
Does a divorce change my right to stay in the home?
If you do not own any part of the home, your right to possession ends when you cease to be spouses, unless a separation agreement or court order says otherwise (s. 19(2)(b)). Deal with the home before the divorce takes effect.
Can the court order the house sold if we cannot agree?
Yes. In an equalization case, the court can order property partitioned or sold to satisfy the order (s. 9(1)(d)(ii)), and it can make similar orders in an ownership dispute (s. 10(1)(c)). Only the Superior Court of Justice can make these orders.