“Who Gets to Stay in the Family Home During a Divorce?”
Divorce often brings difficult decisions, and one of the most common questions is: “Who gets to stay in the family home?” If you’re dealing with a matrimonial home in an Ontario divorce, this question can become even more complex.
The family home is more than just property — it represents stability, memories, and sometimes the children’s primary residence. In Ontario, the Family Law recognizes this, treating the matrimonial home as a unique category of property with significant legal protections.[1]
This article breaks down some of the special considerations at play when considering the matrimonial home during a separation or divorce.
1. What is a Matrimonial Home?
In Ontario, the matrimonial home is any property that spouses ordinarily occupy as their family residence on the date of separation. specifically, it is defined as:
“Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.” [2]
This can include a house, condo, or apartment, even if it is solely owned by one spouse.
It is important to understand that both spouses have an equal right to possess the property, regardless of whose name is on the title. This means that both parties are entitled to live in the home unless the court orders otherwise.
It should also be noted that multiple properties can qualify as matrimonial homes. For instance, a cottage regularly used by the family may also fall into this category, and would also be subject to all the rules and exclusions below. Property owned primarily for investment purposes, or for vacations a few times a year, would not fall under this classification.
2. Temporary Possession During Separation
In the early stages of separation, where tensions between parties are often at their peak, deciding who stays in the matrimonial home can be challenging. If an agreement cannot be reached, the court may grant exclusive possession to one spouse.[3]
Exclusive possession does not change ownership but allows one spouse to remain in the home while requiring the other to leave. When making this decision, the court considers:
- The best interests of the children, prioritizing their stability and security.
- Any history of domestic violence or safety concerns.
- The availability of alternative housing options.
- The financial positions of both spouses.
Courts are generally reluctant to grant exclusive possession unless there are “extraordinary circumstances” as they impact the fundamental right of each spouse to remain in the home. Unless there are concerns regarding the best interests of the children, or there will be significant hardship to one spouse, the courts will generally refuse to grant such an order.
3. Dividing the Matrimonial Home
When it comes to dividing property, the matrimonial home is treated differently from other assets. Under Ontario’s Family Law Act:
- The value of the home is typically shared equally between the spouses, regardless of ownership.
- Unlike other property, spouses cannot deduct the home’s pre-marriage value from the equalization calculation.
- Even gifts or inheritances used to purchase the home may lose their exclusion status if the home is designated as matrimonial.
Importantly, divorce does not automatically mean the home must be sold. At times, one spouse buys out the other’s share or negotiates a property trade involving other assets, such as retirement pensions or balanced against a lump sum spousal support payment.
4. Do Children Impact Matrimonial Home Decisions?
The best interests of the children are more often than not the paramount consideration in family law matters. Courts often prioritize a child’s need for stability when deciding temporary possession of the home. Factors such as the child’s age, custody arrangements, and special needs may influence the court’s decision.
For example, even if one spouse owns the home, the court may grant exclusive possession to the other if it ensures consistency for the children. This of course all depends on the exact circumstances of your matter, something which a family law lawyer can help you with understanding.
5. What About Common-Law Couples?
Unlike married couples, common-law partners in Ontario do not have automatic rights to the matrimonial home. Indeed, technically there is no concept of a “matrimonial home” in common law relationships. Ownership determines possession unless the non-owning partner can establish trust claim, such as through contributions to the property.
If you’re in a common-law relationship, understanding your property rights is crucial, as they are governed by entirely different rules. Trust claims, both resulting and through unjust enrichment, are highly contextual and require a keen understanding of the legal mechanisms at play. If you are in a common law relationship which is ending, it is extremely import that you speak to a family law lawyer to determine if you may have any claims to possession or equity in the “matrimonial” home.
6. Seek Legal Advice Early
The division of the matrimonial home is one of the most complex and emotionally charged issues in family law. Whether you are worried about retaining your home, ensuring your children’s stability, or receiving your fair share, seeking legal advice is essential.
At Progressive Legal Solutions, we specialize in guiding clients through the legal and emotional complexities of divorce. We will help you understand your rights and options, ensuring you are equipped to make informed decisions about your future.
[1] Family Law Act, R.S.O. 1990, c. F.3. Part II.
[2] Ibid, s.18(1)
[3] Ibid, s.19(1),
Written by Caidan Ubell