Multiple matrimonial homes and the cottage

Introduction

A matrimonial home is treated differently than all other property in family law, and your cottage might be one in addition to your primary residence. The Family Law Act describes some of the special features of a matrimonial home. Importantly, there can be more than one matrimonial home as a result of section 18 of the Family Law Act meaning that a primary home and a cottage can both be a matrimonial home at the same time.

What does the definition of "matrimonial home" really mean?

The definition of a matrimonial home is as follows:

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.

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28 (1) This Part applies to matrimonial homes that are situated in Ontario.

There are three necessary elements to the statutory definition of “matrimonial home”, being 1. an interest, or ownership, in the property, 2. ordinarily occupied by the person and his or her spouse as their family residence, and 3. these criteria are present at the time of separation. However, there is no one-size-fits-all criterion. Courts continually take a contextual analysis based on the facts of each individual case. The case law, while not entirely consistent, provides a good overview.

Case law on the “matrimonial home” elements related to ordinarily occupied

In Oliver Estate v. Oliver, 2012 ONSC 718, the court discusses the concept of ordinary occupation, the need for a flexible and contextual analysis, whether the parties need to be physically together in the occupation for matrimonial home status, and the relevance of intention in deciding whether a cottage is also a matrimonial home. In essence, a couple who has a primary home and a cottage might in fact make both of the properties a matrimonial by spending part of their time at each property, ordinarily occupying the properties, or intending both properties to be treated as a matrimonial home. The court describes some of the main elements of finding a matrimonial home:

Ordinary occupation & flexible approach

45 …[t]he ordinary occupation which is required of a home in order to qualify as a matrimonial home is that it be occupied by the parties as a family residence. This requires that a significant part of the spouses' time together be spent in and around the home and that the occupation of the home is not merely occasional or casual.

47 However, the jurisprudence also makes clear that the court must engage in flexible and contextual analysis of ordinary occupation….In Goodyer v. Goodyer, [1999] O.J. No. 29 (Ont. Gen. Div.) at para. 16, Perkins, J. noted that "to occupy something ordinarily does not require constant or continual occupancy, nor does it require occupancy of every square metre."

Physically together

…In MacFarland v. MacFarland, [2009] O.J. No. 2149 (Ont. S.C.J.), Mackinnon, J. found that the parties need not be physically together when occupying the family home; they simply must both treat it as a family home.

Intention

…48 Where usage is minimal or sporadic, the courts have focused on the intent of the parties. In LeCouteur, H.A. Vogelsang, J. held that, despite spending only five days at the property in dispute, ordinary occupation was found because the family's "clear intent and purpose was to live there as a family." In Durakovic v. Durakovic, [2008] O.J. No. 3537 (Ont. S.C.J.) at paras. 123-127, the parties owned several homes around the world and led a nomadic lifestyle, staying at the property in dispute sometimes together and sometimes individually. In finding certain property to be a matrimonial home, M.A.C. Scott, J. examined the express intention of the parties. In addition, Scott, J. considered how property was maintained.

These are just some of the applicable considerations and they are quite significant.

Cottage found to be a matrimonial home

In Ethier c. Cyr. 2009 Carswell Ont 5685, [2009] WDFL 5299, the family was using the cottage during the summer months on a weekend basis. The cottage was inherited by the husband, but that was not enough to counter the fact that it was ordinarily occupied during the summer months and therefore used as a matrimonial home:

19 The cottage in question is located on Lake Blue Sea in the municipality of the same name. It was mainly used for summer sports such as swimming, fishing and boat trips. It was used quite rarely in the winter, maybe once or twice a winter for snowmobiling. Its main use was in the summer. The cabin was equipped for summer sports: a motor boat, a Seadoo, a canoe, "u-tubes", windsurfers, a "kneeboard" and toys for Sabrina. For winter, there was a snowmobile.

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21 After hearing all the evidence, I find that the Blue Sea Lake Cottage constitutes a matrimonial home because it was used by the family, i.e., Marc, Anne and Sabrina for almost all purposes of week in summer from the year 2000 until the date of separation in 2007. It is true that in 2007 it was used less often, because of marital difficulties between Marc and Anne.

Cottage found not to be a matrimonial home

However, in cases like Egan v Burton, 2013 ONSC 4086, where the husband inherited the cottage the result was different. Despite the family having “packed and moved to the cottage for the summer months”, the court found the intention of the parties was that the cottage was the husband’s and not the wife’s property:

14 Here, the applicant never treated the cottage as a family residence. While the evidence is that the parties annually packed and moved to the cottage for the summer months, the evidence also shows the applicant treated the cottage very differently from the matrimonial home on Chatelain. Aside from ordinary housekeeping, she made no contribution to the operation or maintenance of the cottage. She showed none of the interest in the cottage that she showed in the Chatelain home. She knew the cottage was his, knew that he had owned it for a very long time and well before she knew him, and knew that it was his after a settlement with his first wife. She knew that the respondent paid all of the expenses for its upkeep and paid for all of the improvements. Whereas she did not. These were two people who were living on retirement income of roughly equivalent value. If she had been asked prior to the separation about her intention regarding the cottage, I am satisfied that she would have said that it was his cottage and his alone. This is not a case where they purchased the cottage together and put it in his name or the name of a numbered company. Neither is it a case where the one party transferred a joint interest to the other party after marriage. And neither is this a case where the parties used the cottage together, planned the improvements, and then after the cottage was transferred to the one party alone, the jointly owned matrimonial home was used to finance the improvements on the cottage. In Debora v. Debora, in upholding the trial judge's decision that a cottage was a matrimonial home, Weiler, J.A explicitly referenced that "it was maintained from the joint bank account".

15 In all of those cases there was evidence, quite aside from the parties' use, of the intention of the parties to treat the cottage as a family residence either by way of active participation in the planning and upkeep, or material contributions. I find that the answer to the second question — was it used as a family residence? — to be 'no'.

Remedying this issue

The Family Law Act provides for a mechanism to remedy uncertainty through a property designation. If both spouses designate their primary residence as a matrimonial home, then all other properties that are not designated will cease to be a matrimonial home pursuant to section 20 of the Family Law Act. The Family Law Act states:

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.

(2) The designation may include property that is described in the designation and is contiguous to the matrimonial home.

(3) The designation may be registered in the proper land registry office.

(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.

(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.

Conclusion

In conclusion, determining whether a cottage qualifies as a matrimonial home in family law is a nuanced process that requires a flexible and contextual analysis. While the statutory definition outlines key elements, including ownership and ordinary occupation, courts consider factors such as intent. The case law provides guidance but lacks a one-size-fits-all approach. To address this uncertainty, families can proactively designate their primary residence as a matrimonial home under the Family Law Act, excluding other properties like a cottage from this status.