Residential Legal Tips

Yours, Mine or Ours?

How a home is divided between a couple where only one partner is the legal owner

By: Kaitlyn Perrotta, Lawyer and Millennial Translator

          Long gone are the days when most couples would move in together straight from their childhood homes. Lots of couples, particularly those who come together later in life, have already established themselves and accumulated assets, including a house, independently. Whether it be for reasons of convenience or financial efficiency, partners find themselves in the humdrum of living in a residence that only one partner owns. If only one partner is on title to the property, does that partner keep all of the equity in that home?

          The most common answer that all clients hate to hear from their lawyer: it depends. Legal rights or claims for equity in such property varies depending on factors such as the relationship status of the parties living in the home, whether it is a matrimonial home and/or whether the party not on title has made significant contributions to the property.

          If you and your partner are married: The very first question you must ask is whether the property is a matrimonial home. According to section 18 of the Family Law Act (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”. This means that if you are married and you live in a property that is ordinarily occupied by you and your spouse as a family residence, then both spouses have statutory rights of possession to and equity in that property. If you owned the property before the date of marriage, you are unable to deduct whatever equity you had in that property before the date of marriage from being equalized between the spouses. If a spouse has put a large sum of money, even if it was a gift or an inheritance, into improvements for the matrimonial home, that money and any increase in the value of the home will not be excluded from being divided between the spouses. (2) 

          If you and your partner are not married: Common law spouses have no property rights protected by the Family Law Act or any other statute in Ontario. However, a common-law spouse can make a claim for equity in a property by proving that there has been “unjust enrichment”. Imagine a person has purchased a raspberry bush and planted it in the ground, however another person has carefully tended to that same raspberry bush ensuring it gets right amount of sun, water and fertilized soil. To state that the person who initially bought the plant is entitled to all of the raspberries that bush yields and the person who cared for it is entitled to none could be called “unjust enrichment”. There also needs to be a “joint family venture” relationship. A Supreme Court of Canada decision in Kerr v Baranow3 stated that facts of the relationship need to evidence mutual effort, economic integration, actual intent and priority of the family. A court may issue a remedy of equity in property if a party can prove unjust enrichment emerged from a joint family venture relationship. Divide those raspberries, its only fair!

          Both the foregoing scenarios describe the common law and statutory law for Ontarians who do not have a valid domestic contract (either a prenuptial agreement, a marriage contract, a cohabitation agreement or a separation agreement) in place. You need to clearly understand the rights that the law prescribes to you before signing a domestic contract. Continue to educate yourself through online reading materials, or consider speaking with a lawyer about what equity you or your partner may share in your home. Wood Gold LLP is based out of Brampton, Mississauga and Toronto and provides free 30-minute consultations where you can speak with a legal professional about protecting your rights. 

1 R.S.O. 1990, c. F.3,  2 Ibid, section 4(1)