There were nearly 43,000 divorces recorded in 2020, according to Statistics Canada. While that’s the lowest number seen in over 50 years, that’s still many dissolved marriages that must be dealt with. Among the many issues that are typically involved when a couple divorces is the family home. What every divorcing couple wants to know is, who gets the house in a divorce in Canada?
Who Gets The House In A Divorce In Canada?
The general rule of thumb is that property acquired during a marriage is split equally between both spouses in a divorce. This includes the matrimonial home.
In the event of a divorce, the divorcing couple must decide what to do with the home. Moreover, in some cases, the property is sold and the proceeds of the sale (if there are any) are split accordingly between both spouses. In other cases, one spouse can buy out the other’s interest in the property and continue living there.
What Is A Matrimonial Home?
A matrimonial home is a property in which both spouses have an interest and which is occupied as the family residence. This type of property is given unique legal status in Canada to ensure both spouses and children are given fair treatment and protection.
In Canada, there can be multiple matrimonial homes involved. For instance, if the divorcing couple has a vacation home or cottage that they used on a regular basis up until the time of separation, the property would be considered a second matrimonial home. However, if the second property was used mostly or only by one spouse, it may not be considered a matrimonial home.
Factors Considered in Property Division
The division of property in a divorce can be complex. To ensure all parties involved are treated fairly as assets are divided, the following factors are closely considered:
Length Of The Marriage
The longer the marriage, the more complex property division can be, as assets and debts are more interconnected with both spouses. In shorter marriages, the division of property may more often involve what each person had before the marriage and what they brought into it.
Financial Contributions Of Each Spouse
How much each spouse contributes financially towards buying, maintaining, and improving the property will be examined. In many cases, the majority of the financial responsibilities may have come from one spouse, while in other scenarios, both spouses may have contributed equally.
Future Financial Needs Of Each Spouse
Efforts are typically made to ensure that each spouse is able to maintain the standard of living that they have grown accustomed to. This is especially true if one earns significantly less than the other. To consider each spouse’s future financial needs, the court may examine earning potential, health, age, and roles in childcare.
Any Agreements Or Arrangements Made
While only about 8% of Canadians have prenuptial agreements, these legal documents can play a key role in how property is handled in the event of a divorce. Agreements can also be made during the marriage regarding property division. These agreements can make it easier for the courts to determine how to proceed.
Provincial Rules On Division On Property In A Divorce
In Canada, family law deals with legal issues that arise when a marriage ends. Several legislations are in place in Canada to deal with issues regarding family law, including the Divorce Act, which specifically sets the rules for ending a marriage.
The Constitution Act gives the federal, provincial, and territorial governments specific powers to govern family law. However, when it comes to property rights, it’s the provincial and territorial governments that oversee such matters. As such, legislation regarding the division of property can vary across Canada.
To illustrate how some provinces govern the division of property, we’ve used BC, Alberta, Ontario, and Quebec as examples:
British Columbia
In BC, the division of property is governed by the Family Law Act:
- Property that was acquired during the marriage is typically equally divided between divorcing spouses.
- Property that was individually owned by either spouse before the relationship and brought into the marriage is typically excluded, though any increase in value during the marriage may be divided. The exception is if the property that one spouse brought into the marriage becomes the matrimonial home. In this case, the property would be equally divided.
- Rules on dividing property and debt apply to both married couples and common-law couples who lived together for at least two years.
Alberta
In Alberta, the rules surrounding the division of property in a divorce are governed either by the Family Property Act or Matrimonial Property Act, depending on the situation:
- Family property is typically equally divided between the spouses or adult interdependent partners (unmarried couples).
- Property that was acquired while a couple lived together but before a marriage is considered family property and is subject to the rules of division under the Family Property Act.
- If a pre-existing agreement was made before the marriage, the property is divided according to the agreement.
Ontario
The rules for property division in Ontario are as follows:
- Property purchased during a marriage, including the matrimonial home and other valuable assets, must be equally divided in the event of marriage dissolution.
- Any appreciation in value of a property that was owned prior to the marriage is typically equally divided. The full value of the family home must be shared even if one person bought the home before the marriage, received it as a gift, or inherited it.
- Property can be divided any way the couple wants if both agree.
Quebec
In Quebec, the following rules governing family patrimony apply to property division in a divorce:
- The matrimonial home is divided equally between the spouses. Each person receives an equal share of the property value.
- If there is a disagreement between the spouses regarding the division of the family patrimony, the court may assign some property to either spouse.
Purpose Of Marriage Contracts
A marriage contract is a legal document that couples agree to and sign before getting married. For those who are not married but live together in a common-law relationship, a similar document referred to as a cohabitation agreement may be signed.
The purpose of such agreements is to protect and preserve wealth and assets and detail each person’s financial rights. These documents also establish intentions regarding property and explain how assets should be divided in the event of a divorce.
If there is a disagreement with any of the terms of the contract following separation and divorce, the court may have to get involved. In this case, the judge would decide how property and other issues are to be handled.
It should also be noted that the marriage contract should be fair for both parties. If it’s deemed to be unfair, the judge may throw it out.
Where Can You Get Legal Advice?
It’s important to get legal advice from a lawyer experienced in family law when determining how property should be fairly divided in a divorce. Having a lawyer act on your behalf will ensure that your interests are protected and advocated for.
You can obtain more information on property law from the Minister of Justice or Attorney General in your prince or territory.
Keep in mind that the Department of Justice doesn’t provide direct legal help or advice to the general public. Instead, you can find information on regulations, statutes, recent laws, and relevant court decisions. But for legal advice specific to your situation, you should reach out to a lawyer or find a legal aid program near you.
Final Thoughts
The division of the family home following divorce is multi-faceted and involves many factors. While the property may typically be divided equally between both spouses, there can be other issues involved, such as a prenuptial agreement or disagreement among spouses. In all cases, it’s essential to obtain legal advice or representation to ensure that you get your fair share when dividing the family home.
