Who Gets the House in a Divorce in Canada?

For many families, the home is the most important asset and the most emotional one. Understanding the special rules that apply to the matrimonial home will help you make informed decisions.

For most Canadian families, the matrimonial home is the single largest asset. When a marriage or common law relationship ends, questions about who gets to stay in the home, whether it must be sold, and how its value is divided are among the most urgent and emotionally charged issues. The legal treatment of the matrimonial home varies significantly across Canadian provinces, so understanding the rules that apply in your jurisdiction is essential for protecting your interests.

Unlike other assets, the matrimonial home receives special treatment under Canadian family law. In most provinces, even if one spouse owned the home before the marriage, it may still be subject to division upon separation. For a broader look at how all assets are divided, see our property division guide. This special status reflects the recognition that the family home serves a unique purpose: it is where the family lived together, and both spouses and any children have a deep connection to it regardless of whose name is on the title.

How the Matrimonial Home Is Treated by Province

Ontario: Special Status of the Matrimonial Home

In Ontario, the matrimonial home holds a unique and powerful legal status under the Family Law Act. Section 4(2) of the Act provides that the matrimonial home cannot be excluded from the equalization calculation. This is a critical distinction from all other types of property. Normally, assets that a spouse owned before the marriage can be deducted from their net family property, reducing the amount they owe in equalization. However, this deduction does not apply to the matrimonial home.

What this means in practice is significant. If one spouse owned a home worth $500,000 before the marriage, and the couple lived in it as their matrimonial home, the full value of that home at the date of marriage cannot be deducted from the owning spouse's net family property. The entire value of the home at the date of separation is included in the equalization calculation. This rule applies even if the home was an inheritance or a gift, which would normally be excludable for other types of property.

Equal Right of Possession

Section 19 of the Ontario Family Law Act gives both spouses an equal right to possession of the matrimonial home, regardless of who holds the title. This means that neither spouse can lock the other out of the home or force them to leave, even if only one spouse's name is on the deed. This right continues until a court order, separation agreement, or divorce changes it.

Restrictions on Sale and Encumbrance

Section 21 of the Family Law Act prevents either spouse from selling, mortgaging, or otherwise encumbering the matrimonial home without the other spouse's written consent. This protection exists even if only one spouse is on the title. The purpose is to prevent one spouse from disposing of the family's most important asset without the other's knowledge or agreement. If a spouse attempts to sell or mortgage the home without consent, the transaction may be set aside by the court.

Exclusive Possession Orders

Under section 24 of the Family Law Act, the court can grant one spouse exclusive possession of the matrimonial home. This means the other spouse must leave and cannot return without permission. The court considers several factors when deciding whether to grant exclusive possession, including the best interests of any children, the financial situation of both spouses, any existing orders or agreements, the availability of other suitable housing, any violence or risk of violence committed by one spouse against the other, and the conduct of the spouses in relation to each other.

Common Questions

If you and your spouse are negotiating what happens with the home, a separation agreement can formalize your arrangement and make it enforceable. If you're looking for a family lawyer to help, browse family lawyers across Canada.

Additional Resources

This content is for informational purposes only and does not constitute legal advice. Laws vary by province and individual circumstances. Consult a qualified family lawyer for advice specific to your situation.