Who Gets The House In A Divorce With Children?

a judge's gavel next to a miniature house on a desk

A matrimonial home is where a married couple has been living together as a family. It might hold a lot of emotional and financial value in both of their lives. When it comes to divorce, the question of who gets the house comes to the forefront. It is a place where your kids made memories and also felt a sense of home. How you handle division of the house will directly affect your relationship with your children. 

Who gets the house in Ontario?

In Ontario, the law treats the matrimonial home differently from other assets. Both spouses have an equal right to live in the home, regardless of whose name is on the title. This rule makes sure that neither spouse can sell or mortgage the home without the other’s consent.

If children are involved, the courts will prioritize their safety and stability. Courts prioritize maintaining a consistent living environment for the children, which often influences decisions about the matrimonial home.

What factors contribute to the decision? 

If you are unable to come to a decision, the court decides who gets to stay in the home based on these factors: 

  1. Custody Arrangements: If one parent is awarded primary custody of the children, they are more likely to stay in the home to provide stability and not disrupt their routine. 
  2. Financial Capability: Courts consider each spouse’s income and ability to manage mortgage payments and maintenance costs. A parent with a higher income may be better positioned to retain the home and buy out the other parent’s share. 
  3. Children’s Best Interests: Beyond stability, the court also checks for proximity to schools, extracurricular activities, and social networks, so a child’s day-to-day life is not interrupted. 
two people sitting at a table with their hands clasped over a divorce document with two wedding rings on it

How to proceed with the division of your house? 

You and your ex-spouse have two options. Let’s talk about them. 

1. Selling the Matrimonial Home

Selling the home and dividing the proceeds is a common solution when neither spouse can afford to keep the home independently. It gives both spouses the opportunity to start fresh financially and provides a clear division of assets. If you’re choosing this route, weigh your options carefully as it can interrupt your kids’ life largely. 

2. Buying Out the Other Spouse

Another option is for one spouse to buy out the other’s share of the home. This arrangement allows the children to remain in their familiar environment while providing the other spouse with financial compensation, also known as spousal support. The buying spouse must have the financial means to afford the buyout and qualify for a mortgage independently.

Can I Sell or Rent Out the Matrimonial Home Without the Other’s Consent?

In Ontario, neither spouse can sell or rent out the matrimonial home without the other’s consent. The law grants both spouses an equal right to live in the home, regardless of who holds the title. It is to protect the other spouses’ rights or the children’s living situation.

Who Takes Care of Expenses for the Family Home?

It purely depends on the case and as instructed by the court. In some cases, both spouses may continue to share the financial responsibilities of the home until the divorce is finalized. This includes mortgage payments, property taxes, utilities, and maintenance costs.

If one spouse has primary custody of the children and remains in the home, they may be responsible for most of the household expenses. However, the other spouse might contribute through spousal or child support payments, which can help cover housing costs. If the home is to be sold, both spouses might continue to share the expenses until the sale is completed. If one spouse buys out the other’s share of the home, the buying spouse becomes solely responsible for all future expenses.

If you’re planning to divorce your spouse, make sure you talk to an experienced family lawyer. We’re currently accepting new clients at our family law firm in Brampton. Schedule your first consultation with us today.

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