Definitions
17. In this Part,
“court” means a court as defined in subsection 1 (1) but does not include the Ontario Court of Justice; (“tribunal”)
“property” means real or personal property. (“bien”) R.S.O. 1990, c. F.3, s. 17; 2006, c. 19, Sched. C, s. 1 (2).
Matrimonial home
18. (1) 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 is their matrimonial home. R.S.O. 1990, c. F.3, s. 18 (1).
Ownership of shares
(2) The ownership of a share or shares, or of an interest in a share or shares, of a corporation entitling the owner to occupy a housing unit owned by the corporation shall be deemed to be an interest in the unit for the purposes of subsection (1). R.S.O. 1990, c. F.3, s. 18 (2).
Residence on farmland, etc.
(3) If property that includes a matrimonial home is normally used for a purpose other than residential, the matrimonial home is only the part of the property that may reasonably be regarded as necessary to the use and enjoyment of the residence. R.S.O. 1990, c. F.3, s. 18 (3).
Possession of matrimonial home
19. (1) Both spouses have an equal right to possession of a matrimonial home. R.S.O. 1990, c. F.3, s. 19 (1).
Idem
(2) When only one of the spouses has an interest in a matrimonial home, the other spouse’s right of possession,
(a) is personal as against the first spouse; and
(b) ends when they cease to be spouses, unless a separation agreement or court order provides otherwise. R.S.O. 1990, c. F.3, s. 19 (2).
Designation of matrimonial home
20. (1) One or both spouses may designate property owned by one or both of them as a matrimonial home, in the form prescribed by the regulations made under this Act. R.S.O. 1990, c. F.3, s. 20 (1); 2009, c. 11, s. 28 (1).
Contiguous property
(2) The designation may include property that is described in the designation and is contiguous to the matrimonial home. R.S.O. 1990, c. F.3, s. 20 (2).
Registration
(3) The designation may be registered in the proper land registry office. R.S.O. 1990, c. F.3, s. 20 (3).
Effect of designation by both spouses
(4) On the registration of a designation made by both spouses, any other property that is a matrimonial home under section 18 but is not designated by both spouses ceases to be a matrimonial home. R.S.O. 1990, c. F.3, s. 20 (4).
Effect of designation by one spouse
(5) On the registration of a designation made by one spouse only, any other property that is a matrimonial home under section 18 remains a matrimonial home. R.S.O. 1990, c. F.3, s. 20 (5).
Cancellation of designation
(6) The designation of a matrimonial home is cancelled, and the property ceases to be a matrimonial home, on the registration or deposit of,
(a) a cancellation, executed by the person or persons who made the original designation, in the form prescribed by the regulations made under this Act;
(b) a decree absolute of divorce or judgment of nullity;
(c) an order under clause 23 (e) cancelling the designation; or
(d) proof of death of one of the spouses. R.S.O. 1990, c. F.3, s. 20 (6); 2009, c. 11, s. 28 (2).
Revival of other matrimonial homes
(7) When a designation of a matrimonial home made by both spouses is cancelled, section 18 applies again in respect of other property that is a matrimonial home. R.S.O. 1990, c. F.3, s. 20 (7).
Alienation of matrimonial home
21. (1) No spouse shall dispose of or encumber an interest in a matrimonial home unless,
(a) the other spouse joins in the instrument or consents to the transaction;
(b) the other spouse has released all rights under this Part by a separation agreement;
(c) a court order has authorized the transaction or has released the property from the application of this Part; or
(d) the property is not designated by both spouses as a matrimonial home and a designation of another property as a matrimonial home, made by both spouses, is registered and not cancelled. R.S.O. 1990, c. F.3, s. 21 (1).
Setting aside transaction
(2) If a spouse disposes of or encumbers an interest in a matrimonial home in contravention of subsection (1), the transaction may be set aside on an application under section 23, unless the person holding the interest or encumbrance at the time of the application acquired it for value, in good faith and without notice, at the time of acquiring it or making an agreement to acquire it, that the property was a matrimonial home. R.S.O. 1990, c. F.3, s. 21 (2).
Proof that property not a matrimonial home
(3) For the purpose of subsection (2), a statement by the person making the disposition or encumbrance,
(a) verifying that he or she is not, or was not, a spouse at the time of the disposition or encumbrance;
(b) verifying that the person is a spouse who is not separated from his or her spouse and that the property is not ordinarily occupied by the spouses as their family residence;
(c) verifying that the person is a spouse who is separated from his or her spouse and that the property was not ordinarily occupied by the spouses, at the time of their separation, as their family residence;
(d) where the property is not designated by both spouses as a matrimonial home, verifying that a designation of another property as a matrimonial home, made by both spouses, is registered and not cancelled; or
(e) verifying that the other spouse has released all rights under this Part by a separation agreement,
shall, unless the person to whom the disposition or encumbrance is made had notice to the contrary, be deemed to be sufficient proof that the property is not a matrimonial home. R.S.O. 1990, c. F.3, s. 21 (3).
Idem, attorney’s personal knowledge
(4) The statement shall be deemed to be sufficient proof that the property is not a matrimonial home if it is made by the attorney of the person making the disposition or encumbrance, on the basis of the attorney’s personal knowledge. R.S.O. 1990, c. F.3, s. 21 (4).
Liens arising by operation of law
(5) This section does not apply to the acquisition of an interest in property by operation of law or to the acquisition of a lien under section 48 of the Legal Aid Services Act, 1998. R.S.O. 1990, c. F.3, s. 21 (5); 1998, c. 26, s. 102.
Right of redemption and to notice
22. (1) When a person proceeds to realize upon a lien, encumbrance or execution or exercises a forfeiture against property that is a matrimonial home, the spouse who has a right of possession under section 19 has the same right of redemption or relief against forfeiture as the other spouse and is entitled to the same notice respecting the claim and its enforcement or realization. R.S.O. 1990, c. F.3, s. 22 (1).
Service of notice
(2) A notice to which a spouse is entitled under subsection (1) shall be deemed to be sufficiently given if served or given personally or by registered mail addressed to the spouse at his or her usual or last known address or, if none, the address of the matrimonial home, and, if notice is served or given by mail, the service shall be deemed to have been made on the fifth day after the day of mailing. R.S.O. 1990, c. F.3, s. 22 (2).
Idem: power of sale
(3) When a person exercises a power of sale against property that is a matrimonial home, sections 33 and 34 of the Mortgages Act apply and subsection (2) does not apply. R.S.O. 1990, c. F.3, s. 22 (3); 1993, c. 27, Sched.
Payments by spouse
(4) If a spouse makes a payment in exercise of the right conferred by subsection (1), the payment shall be applied in satisfaction of the claim giving rise to the lien, encumbrance, execution or forfeiture. R.S.O. 1990, c. F.3, s. 22 (4).
Realization may continue in spouse’s absence
(5) Despite any other Act, when a person who proceeds to realize upon a lien, encumbrance or execution or exercises a forfeiture does not have sufficient particulars of a spouse for the purpose and there is no response to a notice given under subsection (2) or under section 33 of the Mortgages Act, the realization or exercise of forfeiture may continue in the absence and without regard to the interest of the spouse and the spouse’s rights under this section end on the completion of the realization or forfeiture. R.S.O. 1990, c. F.3, s. 22 (5); 1993, c. 27, Sched.
Powers of court respecting alienation
23. The court may, on the application of a spouse or person having an interest in property, by order,
(a) determine whether or not the property is a matrimonial home and, if so, its extent;
(b) authorize the disposition or encumbrance of the matrimonial home if the court finds that the spouse whose consent is required,
(i) cannot be found or is not available,
(ii) is not capable of giving or withholding consent, or
(iii) is unreasonably withholding consent,
subject to any conditions, including provision of other comparable accommodation or payment in place of it, that the court considers appropriate;
(c) dispense with a notice required to be given under section 22;
(d) direct the setting aside of a transaction disposing of or encumbering an interest in the matrimonial home contrary to subsection 21 (1) and the revesting of the interest or any part of it on the conditions that the court considers appropriate; and
(e) cancel a designation made under section 20 if the property is not a matrimonial home. R.S.O. 1990, c. F.3, s. 23.
Order for possession of matrimonial home
24. (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,
(a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents;
(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;
(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;
(d) direct that the contents of the matrimonial home, or any part of them,
(i) remain in the home for the use of the spouse given possession, or
(ii) be removed from the home for the use of a spouse or child;
(e) order a spouse to pay for all or part of the repair and maintenance of the matrimonial home and of other liabilities arising in respect of it, or to make periodic payments to the other spouse for those purposes;
(f) authorize the disposition or encumbrance of a spouse’s interest in the matrimonial home, subject to the other spouse’s right of exclusive possession as ordered; and
(g) where a false statement is made under subsection 21 (3), direct,
(i) the person who made the false statement, or
(ii) a person who knew at the time he or she acquired an interest in the property that the statement was false and afterwards conveyed the interest,
to substitute other real property for the matrimonial home, or direct the person to set aside money or security to stand in place of it, subject to any conditions that the court considers appropriate. R.S.O. 1990, c. F.3, s. 24 (1).
Temporary or interim order
(2) The court may, on motion, make a temporary or interim order under clause (1) (a), (b), (c), (d) or (e). R.S.O. 1990, c. F.3, s. 24 (2).
Order for exclusive possession: criteria
(3) In determining whether to make an order for exclusive possession, the court shall consider,
(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children. R.S.O. 1990, c. F.3, s. 24 (3).
Best interests of child
(4) In determining the best interests of a child, the court shall consider,
(a) the possible disruptive effects on the child of a move to other accommodation; and
(b) the child’s views and preferences, if they can reasonably be ascertained. R.S.O. 1990, c. F.3, s. 24 (4).
Offence
(5) A person who contravenes an order for exclusive possession is guilty of an offence and upon conviction is liable,
(a) in the case of a first offence, to a fine of not more than $5,000 or to imprisonment for a term of not more than three months, or to both; and
(b) in the case of a second or subsequent offence, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both. R.S.O. 1990, c. F.3, s. 24 (5).
Arrest without warrant
(6) A police officer may arrest without warrant a person the police officer believes on reasonable and probable grounds to have contravened an order for exclusive possession. R.S.O. 1990, c. F.3, s. 24 (6).
Existing orders
(7) Subsections (5) and (6) also apply in respect of contraventions, committed on or after the 1st day of March, 1986, of orders for exclusive possession made under Part III of the Family Law Reform Act, being chapter 152 of the Revised Statutes of Ontario, 1980. R.S.O. 1990, c. F.3, s. 24 (7).
Variation
Possessory order
25. (1) On the application of a person named in an order made under clause 24 (1) (a), (b), (c), (d) or (e) or his or her personal representative, if the court is satisfied that there has been a material change in circumstances, the court may discharge, vary or suspend the order. R.S.O. 1990, c. F.3, s. 25 (1).
Conditions
(2) On the motion of a person who is subject to conditions imposed in an order made under clause 23 (b) or (d) or 24 (1) (g), or his or her personal representative, if the court is satisfied that the conditions are no longer appropriate, the court may discharge, vary or suspend them. R.S.O. 1990, c. F.3, s. 25 (2).
Existing orders
(3) Subsections (1) and (2) also apply to orders made under the corresponding provisions of Part III of the Family Law Reform Act, being chapter 152 of the Revised Statutes of Ontario, 1980. R.S.O. 1990, c. F.3, s. 25 (3).
Order regarding conduct
25.1 In making any order under this Part, the court may also make an interim order prohibiting, in whole or in part, a party from directly or indirectly contacting or communicating with another party, if the court determines that the order is necessary to ensure that an application under this Part is dealt with justly. 2009, c. 11, s. 29.
Spouse without interest in matrimonial home
Joint tenancy with third person
26. (1) If a spouse dies owning an interest in a matrimonial home as a joint tenant with a third person and not with the other spouse, the joint tenancy shall be deemed to have been severed immediately before the time of death. R.S.O. 1990, c. F.3, s. 26 (1).
Sixty-day period after spouse’s death
(2) Despite clauses 19 (2) (a) and (b) (termination of spouse’s right of possession), a spouse who has no interest in a matrimonial home but is occupying it at the time of the other spouse’s death, whether under an order for exclusive possession or otherwise, is entitled to retain possession against the spouse’s estate, rent free, for sixty days after the spouse’s death. R.S.O. 1990, c. F.3, s. 26 (2).
Registration of order
27. Orders made under this Part or under Part III of the Family Law Reform Act, being chapter 152 of the Revised Statutes of Ontario, 1980 are registrable against land under the Registry Act and the Land Titles Act. R.S.O. 1990, c. F.3, s. 27.
Application of Part
28. (1) This Part applies to matrimonial homes that are situated in Ontario. R.S.O. 1990, c. F.3, s. 28 (1).
Idem
(2) This Part applies,
(a) whether the spouses were married before or after the 1st day of March, 1986; and
(b) whether the matrimonial home was acquired before or after that day. R.S.O. 1990, c. F.3, s. 28 (2).