Pursuant to Section 18 of the Family Law Act in Ontario, every property that is currently being occupied or if the parties are separated, was occupied by the spouses as their family residence is their matrimonial home.
Pursuant to Section 19, both spouses have an equal right to possession of the matrimonial home.
Pursuant to Section 21, neither spouse can dispose of an interest in the matrimonial home unless
- the other spouse joins in;
- the other spouse releases their interest in the property;
- a court authorizes the transaction.
As a result, if you move out of the matrimonial home you will not lose your interest in the property. You have a spousal interest in the home that will have to be valued as of the date of separation if the property is owned by the other spouse only. If the property is owned jointly then the property will be valued up to the date of trial (and not the separation date).
If you signed the mortgage as an owner or guarantor, then you still will be liable for the payments on the mortgage as a matter of contract between you and the mortgage company.
However, if you were forced out of the house then an argument could be advanced that the remaining spouse should be responsible for the mortgage and carrying costs of the house. You will have to prove “ouster”.
You could ask the remaining spouse to pay occupation rent to off-set your share of the carrying costs. The occupation rent would be an amount of rent someone would pay for a similar house in the area.
You can also designate the property owned by you and your spouse as a matrimonial home, in the prescribed form and register it against the title to the property. The property then, cannot be dealt with without your consent.
Stanley J Potter is a Toronto-based family lawyer offering legal services for divorce and separation, child custody and co-parenting applications, child support, spousal support, and other family law matters.