Thursday, February 23, 2006

The Matrimonial Home in Ontario

FAQ REGARDING THE MATRIMONIAL HOME

My spouse and I are married, and are splitting up. The matrimonial home is registered in my name alone. Because the house is registered to me alone, can I make my spouse leave the home?

Under the Ontario Family Law Act, the matrimonial home has special status, and is treated differently than other assets owned by married couples.

In Ontario, assets are equalized when a marriage breaks down (see my FAQ "Property Issues and Filling out Financial Statements"). The ownership of the assets doesn’t change, and the right to possess the assets ordinarily goes to the spouse who owns them. For example, if you own a car, and your marriage breaks down, you still own the car after the breakdown of the marriage, and as long as your name is the only one on the permit, you are the only person allowed to possess the car.

The matrimonial home is treated as an exception to this rule under the FLA. No matter whose name is on the Transfer/Deed to the matrimonial home, BOTH PARTIES HAVE A RIGHT TO POSSESS THE HOME UPON MARRIAGE BREAKDOWN.

If the parties agree that one spouse should live in the home exclusively, they can sign a separation agreement granting that spouse exclusive possession. This means that the other spouse is no longer allowed to enter the home without the permission of the spouse in possession.

If the parties cannot agree which one should live in the home, an application can be made to Family Court for an order for exclusive possession pursuant to s. 24 of the Family Law Act. These orders are not easy to get. The court will have to be satisfied that it is in the children’s best interests that one of the parties be excluded, among other things. In general, there must be a case involving high conflict, domestic abuse, substance abuse, abuse of the children, or similar extreme facts before a judge will consider excluding one spouse from the matrimonial home.

My common law partner and I have been living together for 15 years. The house is in his name. I’m a half owner of it now, right?

WRONG. First of all, under the legislation, only married people can have a matrimonial home. If you never married, you have no "matrimonial home".

This means that upon breakdown of the common law relationship, you have no right to possess a home you don’t own. More importantly, it means that you have no automatic right to claim any share of the home as an owner, "half" or otherwise.

Unmarried common law couples can always ask the court for an order that they should own a share of the home on the basis that they contributed money or money’s worth to the home (resulting trust), or that they have done work in the family setting that "unjustly enriched" the spouse who owns the home, and that the non-titled spouse should be compensated by being given a share of the home. These kinds of claims are highly fact-driven, which makes them expensive to take to court. The outcome is also uncertain in most cases.

Unmarried couples can also execute an agreement(a cohabitation agreement) that says what they want to do about their family residence if their relationship breaks down (s. 53 of the FLA). They can provide for a division of the home’s value, and they can say who will live in it, and for how long.

The lack of a legislative right to possession of the family residence for unmarried cohabitatants is an issue that remains unaddressed in our current provincial legislation. With a growing proportion of couples choosing to live common law, the issue really needs to be given some thought by the provincial government.

My wife and I are married and are splitting up. I owned the matrimonial home on the date of marriage, and had about $50,000 equity in it. Can I subtract that amount from my Net Family Property so I don’t have to share the pre-marriage value of the home with my wife?

NO. If this were any other asset but the matrimonial home, the answer would be yes (see my Post "Property Issues and Filling Out Financial Statements").

The matrimonial home is defined as the home the spouses are living in on the date of separation. If you brought the home into the marriage, and you and your spouse are still living in it on the date of separation, it is a "matrimonial home" under the legislation, and you cannot exclude its pre-marriage value from equalization.

If, however, you brought the home into the marriage, sold it, and put all of the proceeds into a new home, which you are living in with your spouse on the date of separation, the new home will be the matrimonial home, and the old home, the one you brought into the marriage and sold, will have lost its status as a matrimonial home. You can, in this situation, deduct the pre-marriage value of the home you brought into the marriage.

My husband and I have a cottage and a home in the city. Which one is our matrimonial home?

Both homes may be matrimonial homes. It is possible to have more than one matrimonial home under the legislation.

If you and your spouse customarily lived in the city home in the winter, and the cottage in the summer during the marriage, then both homes may qualify as matrimonial homes. This will be so no matter which of the two homes you and your spouse are actually occupying on the date of separation.

But I inherited the cottage during our marriage! Can’t I exclude it from my Net Family Property?

Not if it is a matrimonial home. Unlike other assets, matrimonial homes cannot be deducted as pre-marriage assets, nor can they be excluded as gifts from third parties given during the marriage.

I want to make sure I don’t have to share the value of the matrimonial home with my spouse. How can I do that?

You and your spouse can sign a domestic agreement either before or during your marriage which allows you to keep the value of the home to yourself. Some couples decide to share part of the value with their spouses in their agreements, to compensate the spouse who is not on title for contributions to the home. But in your agreement with your spouse, you can make any decision you and your spouse want to make about the value of the matrimonial home. If the agreement is made before or during the marriage, any provision in a domestic agreement in which a spouse gives up the right to possess the home is unenforceable. Spouses can (and frequently do) give up the right to possess a matrimonial home in a separation agreement as part of a global settlement.

Can my spouse and I just do an agreement ourselves?

Please see my Post regarding Home-Made Separation Agreements. You can - but there are a number of formal requirements to make the agreement enforceable. It is almost never a good idea to create on your own a document that has the potential for expensive and far-reaching consequences. Each of you should retain a separate lawyer to review what you are trying to accomplish in the agreement, and to draft it for you.

Dealing with issues related to the matrimonial home or family residence is complicated. You should consult a lawyer before signing any documents, or making any commitments related to your home and your rights to it.

Mary-Jo Maur
Barrister & Solicitor
151 Wellington Street #1
Kingston ON K7L 3E1
(613) 530-2665 (voice)
(613) 530-2241 (fax)

E-mail me!

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Fertility Rituals

Marriage is one of the biggest fertility rituals Known in Indian culture. When two people get married. they are said to enter grihasta ashram where they are expected to bear children. satify their sexual urge, earn money and follow religious practices. Hindu marriages profess the idea of coming together of the energies and paving way to a new creation.

Offering of Grains

Throughout India, one thing that remains common to all communities is offring of grains in wedding ceremony. Mostly rice, puffed rice or whole grains, these grains are fed to the sacred fire in different ceremonies.

Importance of Shiva's Bael leaves

Holy Bael leaves are proffered in several ceremonies before the wedding and after it. In many communities in india, before the wedding day arrives, Bael leaves are placed in earthen pots which are topped with different kinds of cereals. After the wedding, the sprouted seedlings are then released in a flowing river or a pool. This ritual is performed to invoke blessings of Lord Shiva upon the married couple and pray for their progeny.

Vishnu's pious Lotus

As per mythology, at the time of creation of the universe, while lord Vishnu was pondering over the creation of mankind, a pious lotus rose out of his navel. On that lotus was seated Lord Brahma who paved way to the creation and illumination of the universe. Thus, lotus remains symbolic of procreation, birth and fertility. It is Therefore, offered during wedding puja to the gods to confer potency upon the couple. Also, At the time of a Hindu wedding, the bride and the groom are given the stature of Goddess Lakshmi and Lord Vishnu because they represent the eternal companionship and exemplify how a relationship between husband and wife should be.

Nose ring

Usually seen as a piece of accessory, almost all brides sport nose ring on their wedding day. In some communities, girls are told to get their nose pierced before they tie the knot.

Sacred coconut rituals

Across India, since time immemorial coconut has enjoyed its association with human fertility in a sacrosanct manner. In Gujarat, there is a ritual of bride presenting a coconut in a customary way to the groom at the time of the marriage. Here coconut is symbolic of the progency of the couple that the bridegifts the groom. Of all the fruits, coconut is most closely related to human skull because of the three marking on its base that resemble human facial features.

The mantras of virility

During saat pheras in a Hindu marriage, there are several mantras that are chanted for progency of the couple. While the first phera is for a long lasting companionship, in the second Phera, "Kutumburn rakshayishyammi sa aravindharam", the bride promises the groom that she will fill his with love and will bear children of him.

The History

There was a time when potency was considered as the be all and all of all activities. The earliest ritual of fertility among Hindus can be dated back to the Harappan civilization where it has been discovered that people worshipped clay figurines of a mother goddess who represented fertility. Several phallic symbols representing gods in sitting position wearing bull's horns (Bull being a universal symbol of male potency) have also been found at the sites of indus Valley Civilization. As the world evolved and ancient civilizations paved way to the modern societies, marriage started being considered as a mandatory ceremony before women could conceive. Also, the idea of marriage was propelled by the thought of having the family legacy move ahead; so that families could get heirs.

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