Deciding to separate is an emotionally challenging time for any family. Among the many difficult decisions that need to be made, the fate of the family home often stands out as one of the most significant. In Ontario, the question of whether or not a family has to sell their house upon deciding to separate is a common concern. In this blog, we will explore the relevant laws and factors that come into play when making this decision.
The Matrimonial Home:
In Ontario, the concept of the "matrimonial home" holds particular importance. The Family Law Act defines it as the property where a couple ordinarily resides during their relationship. This definition encompasses both owned and rented homes, regardless of whose name appears on the title or lease.
Equal Right to Possession:
Upon separation, both spouses have an equal right to possession of the matrimonial home, regardless of ownership. This means that both parties are entitled to live in the home, unless a court order or agreement specifies otherwise. It is important to note that the right to possession does not equate to ownership or exclusive use of the property.
Best Interests of the Children:
When children are involved, their best interests take precedence in family law matters. In determining the fate of the matrimonial home, the court will consider factors such as the children's stability, continuity, and their ability to maintain a familiar environment. This may influence the decision on whether or not the home should be sold.
Financial Considerations:
The financial implications of retaining or selling the family home should also be carefully evaluated. Depending on the circumstances, the court may consider the following factors:
1. Affordability: Can one spouse afford to maintain the home on their own, including mortgage payments, property taxes, and maintenance costs?
2. Equalization of Assets: Ontario law requires the equalization of net family property upon separation. Selling the home may be necessary to divide the value of the property between the spouses.
3. Spousal and Child Support: The financial circumstances of both parties, including their ability to pay support, may impact the decision on whether or not to sell the home.
4. Debts and Liabilities: If the family home carries significant debts or liabilities, selling the property may be necessary to address these obligations.
Alternative Arrangements:
In some cases, couples may choose alternative arrangements regarding the family home. This could involve one party buying out the other's interest, transferring ownership, or negotiating a rental agreement. Such arrangements should be documented and agreed upon by both parties to avoid future disputes. The mediation process is a great forum in which families can negotiate what to do with the matrimonial home.
Given the complexity of family law matters, it is highly recommended to seek legal advice when making decisions about the family home upon separation. A family law lawyer can provide guidance tailored to your specific situation, ensuring that your rights and interests are protected.