Off reserve, matrimonial property consists of personal and real property owned by either or both spouses subject to specific inclusions and exclusions determined by provincial and territorial law. Provincial and territorial laws in Canada set out legal principles for defining exactly what constitutes matrimonial property for certain purposes and for placing a value on it in order to determine an equitable division on dissolution of marriage. Provincial and territorial legislation also typically provides for interim remedies such as exclusive possession of the matrimonial home during a period of separation, or in situations of family violence. Some provinces have adopted specific family violence legislation to address the need for protection of abused family members and for the right of victims to remain in their home.¹⁰² Generally speaking, orders of exclusive possession can be applied to homes regardless of whether the home is owned or is being leased, and regardless of which spouse may be listed on title or on the lease.

The concept of matrimonial property is relatively new to Canadian law having been introduced little more than 25 years ago. Its introduction represented a significant shift from the previous doctrine of separation of property (that on dissolution of marriage, each spouse retained the property to which he or she had title). The purpose of contemporary matrimonial property laws is to recognize the equal position of spouses within marriage, to recognize marriage as a form of partnership and to provide for the orderly and equitable settlement of the affairs of the spouses on the breakdown of the marriage. (Provincial and territorial family law also addresses the obligations of former spouses respecting the support of their children.)

Each province and territory has passed legislation addressing the division of matrimonial property - both "real property" (land and buildings on the land) and "personal property" (assets other than real property such as cash, investments, proceeds from sale of a vehicle or entitlement to a pension plan).¹⁰³ This provincial/territorial legislation expresses legal principles that can be used to guide married couples in reaching agreements out of court on the division of their matrimonial property (such agreements can be made before, during or after a marriage or other conjugal relationship). Where a couple cannot agree, the courts can apply these principles and grant remedies and make orders to address the rights and entitlements of each party.

While there are of course differences from jurisdiction to jurisdiction, and the Civil Code of Quebec reflects the unique aspects of a civil law system, there are some common elements found in most, if not all, provincial and territorial legislation addressing matrimonial real property, such as:

• Definition of matrimonial property
• Equal rights of possession to matrimonial home during marriage
• Provision for some form of equalization payments based on value of matrimonial property Remedies
• Rules respecting Agreements.

Definition of matrimonial property: All provincial and territorial legislation in some manner defines "matrimonial property" or an equivalent term. The provinces of British Columbia and Manitoba use the term "family asset" rather than matrimonial property.¹⁰⁴ The Civil Code of Quebec uses the term "family patrimony" in the English language ("le patrimoine familial" in the French language) to describe the property owned by either spouse including the family residence and movable property. ¹⁰⁵

In some provinces, matrimonial property includes all personal and real property owned by either or both spouses at the time an application is made for some form of relief or remedy.¹⁰⁶ In other provinces, matrimonial property must also be used for a family purpose to fall within the definition.¹⁰⁷ Most legislation includes a specific definition of "matrimonial home"¹⁰⁸ or an equivalent term such as "family home",¹⁰⁹ "marital home"¹¹⁰ or "family residence"¹¹¹ as a specific kind and subset of matrimonial property. (Only British Columbia does not.)

While the matrimonial home is usually one property (the place where the family ordinarily resides), in some provinces, the definition can encompass more than one property (and thus include a summer residence) if used for a family purpose and otherwise meeting the requirements of the definition.¹¹²

Equal rights of possession to matrimonial home during marriage: Both parties have an equal right to live in the matrimonial home. Hence, a couple could be living separate and apart under the same roof. In certain circumstances one party can apply to court for an order for exclusive possession of the matrimonial home. This means that one party, if successful in his or her application, will have the right to reside in the matrimonial home to the exclusion of the other. Exclusive possession of the matrimonial home usually follows the person who is successful in getting custody of the children (if any). There are a number of factors that a court will consider in granting one party exclusive possession of the matrimonial home. In many provinces, matrimonial property rights only apply to married spouses. In other provinces and in the three territories, exclusive possession and other rights and remedies are also available to unmarried partners in a conjugal relationship meeting the definition of common-law relationship.Regardless of actual ownership by one spouse¹¹³ or the other or both (regardless of whether one or both spouses' names are on the title to the matrimonial home) provincial legislation recognizes the right of possession of both spouses to the matrimonial home. This usually means that neither spouse can alienate (e.g. sell) the house or have an encumbrance placed on the title without the other's agreement or a court order to that effect. Generally, this does not affect the rights and powers of each spouse to freely dispose of other assets to which he or she has title during the marriage, apart from attempts to defeat the other spouse claiming his or her share in the division of property. In certain circumstances, a party may be required to give an accounting of assets disposed of within a certain period of time prior to the valuation date.

Provision for equalization payments based on value of matrimonial property: Provincial and territorial law each establish a formula for dividing the monetary value of matrimonial property based on the notion of an equal division of the value of the net family property (including real and personal property). In Ontario for example, the total value of all real and personal property held by each spouse is added up and an equalization payment of half the difference of the two amounts is made to the spouse with the lesser total. Not all provinces provide for an equalization payment. Some instead provide a party with an interest in specific property for an "equalization type" of distribution. The calculation of equalization payments can be varied by the court in certain circumstances - for example, taking into account the length of the marriage, the failure by one spouse to disclose to the other the existence of debts or other liabilities at the date of marriage, intentional or reckless depletion of his or her net family property, or if it would cause undue hardship. The court can also vary the term of an agreement between the parties on matrimonial property in limited circumstances such as:

• the best interests of a child;
• failure to provide financial disclosure;
• lack of capacity of one party to sign the agreement;
• if the agreement is not in accordance with the requirements of contract law.

In Quebec, the Civil Code provides rules for the equal division of family patrimony between spouses to a marriage upon separation, divorce or the dissolution or nullity of the marriage.¹¹⁴ Unlike common law jurisdictions, if partition occurs upon separation, there can be no new partition upon a subsequent dissolution of the marriage by divorce or other means.¹¹⁵

Remedies: Provincial law generally provides a range of remedies to spouses in conflict over the matrimonial home including remedies affecting legal rights of possession, such as:

• interim orders of exclusive possession to one spouse upon separation (and pending final resolution) or in cases of domestic violence
• orders of partition and sale (e.g. as part of a final resolution where parties cannot agree on who should get the matrimonial home if both want it)
• orders to set aside a transaction where the matrimonial home has been sold or otherwise transferred by one spouse without the other spouse's consent.

Rules respecting Agreements: In addition to statutory rules for the division of matrimonial real property, provincial and territorial law contemplates the use of various kinds of agreements between married couples and common-law partners, such as marriage contracts, separation agreements, or cohabitation agreements. Provincial and territorial statute law often prescribes rules respecting the interpretation and effect of such agreements.

Provincial and territorial law remedies cannot be applied to matrimonial real property interests in unsurrendered reserve lands as a result of the Derrickson and Paul decisions. However, courts can, in the case of spouses who are both band members include a valuation of an interest in a reserve land allotment in calculating an equalization payment.

Provincial law respecting the division of matrimonial property other than land(personal property) applies to First Nation people on reserve, and regardless of Indian status or band membership, as a law of general application (subject to the terms of any land claim or self-government agreement). Provincial laws of general application respecting real property off reserve also apply to First Nation people.

With the exception of British Columbia,¹¹⁶ Saskatchewan, Quebec, Nova Scotia and the three territories, matrimonial property legislation applies explicitly only to married couples and not to common-law relationships. This distinction has been challenged in court as a violation of s. 15 Charter equality rights. Other provinces may reconsider this distinction and how to respond with possible legislative changes to their matrimonial property legislation. The status of people married by Aboriginal customary marriages with respect to provincial and territorial matrimonial property laws is not clear (except where addressed by a self-government or other agreement).

Provincial and territorial matrimonial property law usually recognizes situations of family violence as a ground upon which a spouse can seek an interim order for exclusive possession of the matrimonial home. Other factors include the best interests of children.

¹⁰²Alberta Protection Against Family Violence Act, R.S.A. 2000, c.P-27; Manitoba - The Domestic Violence and Stalking Prevention, Protection and Compensation Act, R.S.M. 1998, D.93l; Nova Scotia - Domestic Violence Intervention Act, S.N.S. 2001, C.29; Ontario - The Domestic Violence Protection Act, 2000, S.O. 2000, c.33. (not yet proclaimed in force); Prince Edward Island - Victims of Family Violence Act, S.P.E.I. 1996, c.V-3.2; Saskatchewan - The Victims of Domestic Violence Act, S.S. 1994, c.V-6.02; Yukon Territory - Family Violence Protection Act, S.Y. 1997, c.12.

¹⁰³Matrimonial Property Act, R.S.A. 2000, c. M-8 (Alberta); Family Relations Act, R.S.B.C. 1996, c. 128 (British Columbia); The Marital Property Act, R.S.M. 1987, c. M45 (Manitoba); Marital Property Act, S.N.B. 1980, c. M-1 (New Brunswick); Family Law Act, R.S.N. 1990, c. F-2 (Newfoundland); Matrimonial Property Act, R.S.N.S. 1989, c. 275 (Nova Scotia); Family Law Act (Nunavut), R.S.N.W.T. 1997, c. 18 (Nunavut); Family Law Act, S.N.W.T.1997, c. 18 (Northwest Territories); Family Law Act, R.S.O. 1990, c. F.3 (Ontario); Family Law Act, S.P.E.I. 1995, c. 12 (Prince Edward Island); C.C.Q. 1991, 1991, c.64., Division III (Quebec); Family Property Act, S.S. 1997, c. F-6.3 as amended by the S.S., 1998, c. 48; and 2001, c. 34 and 51 (Saskatchewan); Family Property and Support Act, R.S.Y 1986, c. 63 (Yukon).

¹⁰⁴Family Relations Act, R.S.B.C. 1996, c. 128, ss. 58-59 (British Columbia); The Marital Property Act, R.S.M. 1987, c. M45, s. 1 (Manitoba).

¹⁰⁵Article 415 of the Civil Code of Quebec defines "Family patrimony" as composed of the following property owned by one or the other of the spouses: the residences of the family or the rights which confer use of them, the movable property with which they are furnished or decorated and which serves for the use of the household, the motor vehicles used for family travel and the benefits accrued during the marriage under a retirement plan. This article states that "family patrimony" also includes the registered earnings, during marriage, of each spouse pursuant to the Act respecting the Quebec Pension Plan or to similar plans.

¹⁰⁶The Saskatchewan Family Property Act, S.S. 1997, c. F-6.3 as amended by the S.S., 1998, c. 48; and 2001, c. 34 and 51 S.S. 1997, c. M-6-11, s. 2.

¹⁰⁷In British Columbia, the Family Relations Act, R.S.B.C. 1996, c. 128,s. 58(2) defines "family asset" generally as "Property owned by one or both spouses and ordinarily used by a spouse or a minor child of either spouse for a family purpose is a family asset."

¹⁰⁸The Saskatchewan Family Property Act, S.S. 1997, c. F-6.3 as amended by the S.S., 1998, c. 48; and 2001, c. 34 and 51 S.S. 1997, c. M-6-11, s. 2.

¹⁰⁹Family Law Act, S.P.E.I. 1995, c. 12, s.19 (P.E.I.).

¹¹⁰The Marital Property Act, R.S.M. 1987, c. M45, s. 1 (Manitoba)

¹¹¹Article 401 of the Civil Code of Quebec.

¹¹²See for example s. 3 (4) of the Matrimonial Property Act, R.S.N.S. 1989,C. 275 (as amended 1995-96, c. 13, s. 83) which provides "A person and the persons spouse may have more than one matrimonial home." In Ontario, case law has determined that the meaning of "matrimonial home" under s. 18(1) of the Family Law Act, R.S.O. 1990, c. F.3 can include more than one property: Reeson v. Kowalik (1991), 36 Reports of Family Law (3d) 396, at 404-405 (Ont. Gen. Div.); Schaefer v. Schaefer (1986), 38 A.C.W.S. (2d) 142 (Ont. S.C.). S. 18(1) of the Ontario statute defines "matrimonial home" as "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."

¹¹³The term "spouse" in this section of this paper refers to married spouses and common-law partners where provincial or territorial legislation applies to both.

¹¹⁴Civil Code of Quebec, Book Two, Title One, Chapter 4, Section III, Subsection 2.

¹¹⁵Civil Code of Quebec, Article 416.

¹¹⁶A couple living in a marriage-like relationship for at least two years falls within the definition of "spouse" in s. 1 of the B.C. Family Relations Act, R.S.B.C. C.128, s. 1, Dlouhy v. Meegan, [1998] British Columbia Judgments No. 2122 (B.C.S.C.).

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