Family Law Primer - Family Home

Family Home

Sole Occupancy

When couples separate, the issue of who will get to live in the former family or marital home is sometimes a contentious one. If the parties cannot agree then the court has the power to order that one of the parties has the right to continue in sole occupancy to the exclusion of the other, notwithstanding who is the owner or lessor or it.

Postponement of Sale

Generally, a joint tenant of real property has the right to have the property sold and the proceeds divided equally. In a separation case, the court may order that, in the case of a jointly owned home, that the right of a party to have the property sold be "postponed", indefinitely or until a fixed date or condition, or that the property be sold.

If the property is to be sold, and the parties can't agree on the terms and conditions of sale or the adjustment of equities on the sale, the court will refer the matter to a Master of the court to set the terms and conditions and to determine the adjustments between the parties. This is done pursuant to a Reference (see the discussion of References under Family Property).

Occupation Rent

Where one spouse ousts the other from occupation of the home without the benefit of a court order, the remaining owner might be required to pay occupation rent to the other to compensate for the exclusive use of the asset. Also, on sale proceedings, where the occupier seeks compensation for expenses paid in relation to the home, such as taxes insurance or repairs, the court may offset those claims by an award of occupation rent.

Income Tax

Under current provisions the income tax act allows the sale or transfer of a principal residence without the payment of capital gains tax. A party can only have one principal residence and a separated couple cannot have two principal residences until they have been separated for at least one year by virtue of a written agreement or court order.

Thus, for example, a couple with two potentially eligible properties, say a home and a cottage, will not be able to take advantage of this tax holiday for years in which they may have been separated but had not entered a court order or agreement.