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Property Claims


In order to make a claim for a division of property or for the right to remain in the matrimonial home, the person making the claim has to be married to the person against whom the claim is made.

Under the Family Law Act, a common law spouse only has the right to seek spousal support from his or her partner. A common law spouse does not have the right to seek an equalization payment from the other spouse, nor may the common law spouse assert possessory rights in the matrimonial home.

Common law spouses should ensure that property is jointly owned if both parties are contributing to the property. 

Resulting Trust

Separated common law spouses have one main way to try to obtain an interest in the property of the other spouse and that is through a trust claim. In a trust claim, the person who does not own the property is claiming that the owner of the property holds a share of that property in trust for them even though there is nothing in writing giving the non-owner a share of the property.

A resulting trust is a presumption that the non-titled owner has a share in the property based on that person’s contribution to acquiring or maintaining the property.

What the court is looking for in a resulting trust claim is evidence of a common intention to share the property.

The most obvious evidence demonstrating a common intention to share property is where there is an equal and direct financial contribution to purchasing the asset. Sometimes a resulting trust will be found to exist based on the work contributed to repairing or renovating the home.

Constructive Trust

A constructive trust is a remedy that is imposed when the court feels that one party would be unjustly enriched at the expense of the other party if the other party was not given some degree of ownership in an asset.



Property Claims

The matrimonial home cannot be sold unless both spouses consent, no matter whose name the title of the home is registered to. It also means that any sale without the consent of both spouses may be set aside, unless the purchaser is an innocent third party with no knowledge that the home was a matrimonial home. These rights are sometimes referred to as Part II rights because they are contained in Part II of the Family Law Act.

Exclusive Possession of the Matrimonial Home

If the spouses separate and can no longer live together, either party may apply to the court for an order for exclusive possession of the matrimonial home. In order to be given exclusive possession, the spouse seeking the order will have to satisfy the court that continued cohabitation is practically impossible because of violence, tension or arguments. The spouse will also have to provide the court with evidence as to what accommodation is available to the other spouse. If there are children, their best interests will also be considered by the court. It is quite difficult to get an exclusive possession order in a Toronto court.

If the matrimonial home is in the names of both parties then either party may seek an order from the court to have the home sold and the proceeds divided equally.

Contact us for more information or if you wish to obtain property claims advice.

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