Who Gets the House in a Divorce in Canada?

It wasn’t about the house—at least not at first. When Sarah and Daniel sat across from each other in the lawyer's office, they were determined to keep things civil. They had promised each other this wouldn’t turn into a bitter battle, but there it was: the house. The very thing they had both worked so hard for was now at the center of their divorce.

But here's the twist—you don’t always get what you think you deserve in a divorce. In Canada, property division isn’t as simple as splitting everything down the middle. Who gets the house? It’s more complicated than you might think, and it might not be who you expect.

First, let’s debunk a common myth: just because your name is on the deed doesn’t mean you’re automatically entitled to keep the house. Canadian law looks beyond simple ownership titles. It delves into the murky waters of “family property,” which covers not just the house but anything that contributes to the family’s lifestyle.

The Legal Framework

Canada’s divorce laws are based on the principle of equal division of matrimonial property, but don’t be fooled—equal doesn’t always mean 50/50. The house, as matrimonial property, falls under the jurisdiction of provincial laws. This means that the rules differ slightly depending on where you live, whether it's Ontario, British Columbia, or another province. However, the overarching theme across provinces remains consistent: it’s not about who owns the house; it’s about fair distribution.

In most provinces, the house is treated as matrimonial property if it was acquired during the marriage. Even if one spouse owned the house before the marriage, it can still be up for division if the couple lived there together as their family home.

But before you assume the house will be split equally, remember this—there are exceptions.

Unequal Division: When Fairness Overrides Equality

Canadian courts have the discretion to order an unequal division of property if equal division would be unfair. This is where things can get unpredictable. The court considers various factors:

• Length of the marriage
• Each spouse's financial contribution
• Who is responsible for the children?

For example, let’s say Sarah was the primary caregiver for their two children, while Daniel was the primary income earner. The courts might award Sarah the house, especially if she is staying there with the children, even though Daniel contributed more financially.

But what if Sarah and Daniel both worked full-time? What if they contributed equally to the household expenses? This is where things get murky, and emotions often run high.

In such cases, if the couple can’t come to an agreement on their own, the court may order the sale of the house. The proceeds would then be divided according to what the court deems fair.

A Look at Some Real-Life Cases

Let’s consider the case of John and Megan, a couple married for 15 years with no children. John had owned the house for five years before the marriage. When they decided to divorce, Megan expected to receive a share of the house’s value, arguing that her income had contributed to home improvements over the years. The court sided with John, ruling that since the house was a premarital asset and Megan’s contributions didn’t significantly increase its value, she wasn’t entitled to a large portion.

Contrast this with another case where the wife, Kelly, had to give up her career to raise their three children while her husband, Mike, continued working. Despite Mike’s higher income and his claim that he deserved the house, the court awarded the house to Kelly, stating that her unpaid labor in the home and her role as a caregiver contributed significantly to the family’s wellbeing.

These examples underscore an important point: Canadian courts don’t just look at numbers; they weigh the circumstances of the marriage.

What About Prenups and Cohabitation Agreements?

Prenuptial agreements and cohabitation agreements can complicate or simplify property division, depending on how well they are written. If Sarah and Daniel had a prenup that clearly outlined what would happen to the house in case of divorce, the process could have been more straightforward. But even prenups aren’t foolproof. Canadian courts can set aside a prenup if they find it grossly unfair to one party.

This leads to another crucial point: negotiating a settlement before going to court. Litigation is costly, both emotionally and financially. In many cases, divorcing couples prefer to settle outside of court through mediation or negotiation. Here, they can decide for themselves who gets the house, without leaving it up to a judge.

Joint Tenancy vs. Tenancy in Common

Understanding ownership structures can help clarify who gets the house. There are two main types of property ownership in Canada: joint tenancy and tenancy in common.

• Joint Tenancy: This means both spouses own the house equally, and if one spouse dies, the other inherits the entire property. However, upon divorce, this unity is severed, and the property may be divided based on the factors discussed above.
• Tenancy in Common: Each spouse owns a specific share of the property. Upon divorce, each spouse keeps their share, but the house might still be sold to distribute the proceeds.

The Emotional Aspect: More Than Just a House

Divorce is emotionally charged, and the house often symbolizes stability, memories, and identity. For Sarah, it wasn’t just a building—it was where her kids grew up, where family holidays were celebrated, and where life unfolded. For Daniel, it was a financial investment, something he had worked for years to achieve.

This emotional weight makes negotiations difficult, and it’s often why couples fight so fiercely over the house.

Can You Keep the House?

So, how do you ensure you keep the house in a divorce? There are several strategies, but none are guaranteed:

1. Buy out your spouse: One spouse can offer to buy out the other’s share. This requires sufficient financial resources or taking out a new mortgage.
2. Negotiate other assets: Sometimes, one spouse might agree to give up the house in exchange for other assets, such as a retirement account or a business.
3. Stay until the children are grown: Some couples agree to delay the sale of the house until their children are grown, allowing both parties to move on emotionally while providing stability for the kids.

Conclusion: Expect the Unexpected

At the end of the day, who gets the house in a divorce in Canada depends on multiple factors—from provincial laws to personal circumstances. And as Sarah and Daniel discovered, you don’t always walk away with what you expect. Sometimes, it’s not about the house at all; it’s about finding a way to move forward.