If you're thinking of selling your matrimonial home, then
you should be aware of the following considerations in the
Family Law Act (FLA).
Part II of the FLA is entirely devoted to a matrimonial home
that is located within Ontario. Part II only applies in the context
of marriage and not to persons in a common law relationship. Under
section 18 of the FLA, a matrimonial home 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. In other words, a matrimonial home is the house in which
the spouses ordinarily occupied. Spouses may own more than one
matrimonial home, such as a cottage, once it meets the definition
of a matrimonial home.
Under section 19 of the FLA, both spouses have an equal (50-50)
right to possession of a matrimonial home. This means that even
though one spouse may legally own the house, the other non-owning
spouse is entitled to a half interest in the matrimonial home too.
The FLA states that when only one of the spouses has an interest in
a matrimonial home, the other spouse's right of possession is
personal as against the first spouse and ends when they cease to be
spouses, unless a separation agreement or court order provides
otherwise. Therefore, both spouses have a right to live in the
matrimonial home, regardless of if they have separated. Neither
spouse is authorized to change any locks nor prevent the other
spouse from living in the matrimonial home, unless a court order or
separation agreement addresses this issue.
Because both spouses have an equal right to possession of a
matrimonial home, both spouses must consent to the sale of the
matrimonial home. Under section 21 of the FLA, no spouse shall
dispose of or encumber an interest (example: register a
mortgage) in a matrimonial home unless one of the following occurs:
(1) the other spouse joins in the instrument or consents to the
transaction (including sale); (2) the other spouse has released all
rights under this Part by a separation agreement; (3) a court order
has authorized the transaction or has released the property from
the application of this Part; or (4) the property is not a
matrimonial home. Therefore, the non-owning spouse of the
matrimonial home must provide express written consent to sell the
It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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