The matrimonial home has a special place in Ontario family law property legislation. The technical definition is: “Every property in which a person has an interest and that is or, if the parties have separated, was at the time of separation, ordinarily occupied by the person and his or her spouse as their family residence…”  One would normally think of property as land or a condo as most people own this kind of accommodation. But it can also be a rental property because a tenant has an “interest” in the property in the sense of a contractual right to live in it.

For purposes of this article, the key element in the definition of matrimonial home, however, is the definition of “property” which is contained in Section 17 of our legislation. That Section defines property as “real or personal”. Under our common law, the term “real property” means land and things that are stuck to the land and the words “personal property” means pretty much anything  other than land. A house is real property and a boat is personal property.

It has long been held in our case law that there can be more than one matrimonial home. Families with cottages, for example,  might “ordinarily occupy” the cottage throughout some part of the year as their alternate family residence. It’s not the amount of time spent there that matters so much as how the family looks at things.

There are many cases which set out what type of occupation constitutes “ordinary occupation” of a residence but in general terms it means something more than “occasional or casual” but also does not have to be “constant and or continual”. The intent of the family in occupying it is also to be considered.

In a case under our old Family Law Reform Act (in place from 1978 to 1985), the wife made a claim for exclusive possession of the parties’ sailboat.[1] The husband objected arguing that the court had no jurisdiction to make such an order. While not having to make a final determination of whether or not the sailboat could fit the definition of matrimonial home, the experienced Master said:

As to whether the boat is a “matrimonial home”, I wonder if such can be here determined, notwithstanding that there can be more than one such home anticipated as being defined by a court at the trial. I think a cottage has been in a sense declared a matrimonial home, being an adjunct of the regular home of the family, in the past, and I frankly see no reason why the extra home or cottage should therefore be restricted to a question of evaluation of accommodation or mobility, once the principle of an alternative home has been established. The fact that that alternate home moves in some way, and that it may be difficult to locate under some circumstances, or that it may have some restrictions of accommodation I think is not necessarily relevant, as long as it is shown that the general use of the property or thing has been used by the family as an alternative residence while the family was on vacation.

In property disputes, a finding that a property is a matrimonial home has significant consequences:

1. The entire value of the home as at the date of separation must be shared if owned by one spouse no matter who paid for it.
2. The value of property owned on the date of marriage is important because that value is not shared with the other spouse – only the increase in the value of property from date of marriage to date of separation is shared. But that rule does not apply to the matrimonial home. If it is owned on date of marriage and still owned on date of separation, its full value is shared, not just the increase from one date to the other.
3. The value of property that is received by gift from a third party or inheritance is also not normally shareable. But, again, that rule does not apply to the sharing of the value of the matrimonial home. Even if your rich relatives give you the matrimonial home or leaves it to you in their Will, you still have to share the full value of it as of the date of separation with your spouse if you separate.

So if you have an RV or a boat or something moveable that is ordinarily occupied by your family up to the date of separation, you may well be having to share its full value even if you owned it on date of marriage or even if someone gave it to you.

If it’s really important to you that you own a gifted boat or RV which contains the necessary accommodations to constitute a “residence”, then you might want to talk to your spouse about entering into a marriage contract which stipulates what will happen to it if the two of you should separate. Just a thought. We will have to wait and see if someone places this issue squarely before a court to find out if a judge will agree with me that a boat can be a matrimonial home.

Written by Tom Dart

[1] Clark v. Clark, 1984 CanLII 4775 (ON SC), you can find and read the case at this web site: https://www.canlii.org/en/index.html