In Ontario, the law treats common-law couples and married couples very differently. Parenting rights and responsibilities are the same, as are support rights. Property rights and rights to family homes are quite different. People often assume that once you have lived together for a certain period of time, you will have all the same rights as a married couple, but this is not the case. In this series, we will look at the ways Ontario family law treats common-law relationships differently from marriage so that those entering into a common-law relationship are aware of their rights. Additionally, knowing one’s rights and obligations under the law may propel a couple to take matters into their own hands and draft a cohabitation agreement that sets out the terms of their relationship as they would like to see them instead. In the first installment of this series, we will look at rights to the family home.

What is a “Matrimonial Home” Under Ontario Law?

For married couples, a family home has special status if it falls within the special definition of a “matrimonial home.” A matrimonial home is any real property ordinarily occupied by a couple during their marriage, whether it is owned directly by one or both spouses, or through a corporation. Most people think of the matrimonial home as a single property; the home the family considers their primary residence. However, it is possible for a couple to share more than one matrimonial home. For example, if a couple also owns a vacation condo in Florida as well as a cottage in Muskoka, both of these could also be considered a matrimonial home, so long as the couple ordinarily occupied each. If they regularly spend part of every summer at the cottage and part of every winter at the Florida condo, both would likely be considered a matrimonial property in addition to the couple’s primary residence.

When a couple is married, each person retains a right to stay in the matrimonial home after the separation until divorce, unless a court orders otherwise. During the marriage, a matrimonial home cannot be sold or mortgaged without both spouses’ consent, even if only one is the owner. For purposes of equalization, which is the sharing of wealth accumulated during the marriage, the value of a matrimonial home at the date of marriage is included in the equation, as long as the same property was occupied at the end of the marriage by the couple. Gifts and inheritances during a marriage are usually excluded from equalization, but that does not apply to matrimonial homes.

Common-Law Couples and The Family Home

The same rights are not extended to a couple that isn’t married. There are no special rights to a family home occupied by a common-law couple. In that case, the interest in the home remains with the person(s) who holds legal title to the property. There are no rights to live in the property or to participate in decisions about its sale or mortgaging, and no right to share in the value of the property. A common-law spouse may have a claim to an interest in a family home if they can show a specific contribution to the purchase or improvement of the property.

This also means that there is no right to remain in the home after a breakup for the person with no ownership interest in the property.

Changing Entitlements to the Family Home for Common Law Couples

If a couple would like to ensure their rights and obligations differ from the default under the law, there are steps they can take to provide specific rights to the family home.

A couple could set out the terms of ownership, how the value of the home will be divided upon a breakdown of the relationship or death and rights of occupancy as part of a cohabitation agreement. As part of a contract, the couple could set out an equal division of property including the value of the home, regardless of who owns the property, or any other arrangement that works for them. Often couples common-law couples consider cohabitation agreements to protect the interests of their children from previous relationships We advise anyone with concerns and questions about their rights and obligations in the context of a common-law relationship to contact an experienced family lawyer to review their options.

At Boulby Weinberg LLP, our family law lawyers can assist with drafting or reviewing cohabitation agreements and advise clients on how to protect their interests when entering into a common-law relationship. To arrange a consultation with a knowledgeable lawyer at Boulby Weinberg LLP, please complete our confidential online questionnaire, which will provide you with valuable preliminary information tailored to your situation. A representative from our firm will contact you within one business day to discuss your matter further and arrange an initial meeting. To contact our firm without completing the questionnaire, please reach out to us online, or call us at 647-494-0113 ext. 102.

Address

80 Richmond St. West, 18th Floor
Toronto, ON M5H 2A4

T: 647-494-0113
F: 647-347-2156