The matrimonial home is an asset that clients are frequently confused about. Most understand that it is special and treated differently from other assets but have a distorted sense of why, believing that:
● Regardless of how title is held, they have an ownership interest in the matrimonial home and are automatically entitled to half the value of the property;
● There can only be one matrimonial home;
● The term matrimonial home and principal residence are interchangeable;
● The date of marriage value of a matrimonial home can never be deducted;
● They can force the sale of the matrimonial home simply because it is a matrimonial home.
These misconceptions are, in some cases, perpetuated when half the value of the matrimonial home is included on the non-titled spouse’s financial statement absent any explanation as to why.
In turn, the non-titled spouse assumes that he/she is entitled to the post-separation increase in value of the matrimonial home without putting forward the basis to establish an equitable ownership interest in the property.
When considering these issues, it is important to remember that:
(a) To establish an interest in the matrimonial home by way of resulting trust, a financial contribution to the acquisition of the property by the non-titled spouse is required[1]; and
(b) The Ontario Court of Appeal’s decision in Martin v. Sansome[2] has made it difficult for a married spouse to succeed with a constructive trust claim because “In the vast majority of cases any unjust enrichment that arises as a result of the marriage will be fully addressed through the operation of the equalization provisions of the Family Law Act.”
[1] Tadayon v. Mohtashami, 2015 ONCA 777 (CanLII) at para. 47
[2]2014 ONCA 14 (CanLII) at para. 64