“Other Than a Matrimonial Home” – Why Not End This Nonsense?

The inability to deduct the date of marriage value of the matrimonial home has been recognized as an anomaly and an injustice from the time Part I of the Family Law Act came into effect in 1986. Judges, lawyers, academics and the Ontario Law Commission have all recognized the absurdity of the special treatment of the matrimonial home but 30 years later the special treatment of the date of marriage value of the matrimonial home continues and, in fact, the amendments in Bill 133 to the section 4 definition of “net family property” and the addition of section 4 (1.1) of the FLA have confirmed the refusal of the Ministry of the Attorney General to make any change in this clearly irrational exception to the deductibility of the value of date of marriage property.

Why not Amend the Family Law Act Definition of “Net Family Property”?

It would be easy to do, and it would make sense.

The Family Law Act Definition of “Net Family Property”

In calculating the net family property, the first deduction is:

(a) the spouse’s debts and other liabilities, and

The second deduction, the Bill 133 addition being in bold type, reads as follows:

(b) the value of property, other than a matrimonial home, that a spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage; [emphasis added]

What’s Wrong with the Definition of “Net Family Property”?

In a Nutshell

The inability to deduct the value of a home owned by a spouse on both the date of marriage and on the date of separation is contrary to the purposes and objectives of Part I of the Family Law Act. The preamble to the Family Law Act speaks of recognizing, “the equal position of the spouses as individuals within the marriage” and declares that the purpose of the legislation is to ensure the “orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership.”

Paragraph 5 (7) of the Family Law Act reads as follows:

(7) Purpose – The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6). [emphasis added]

In subsection 5(6) there is nothing that even remotely suggests the strange treatment of the matrimonial home in section 4.

Simple Scenario Illustrating the Injustice

The injustice of the special treatment given to the date of marriage value of a matrimonial home may be shown by the following comparison. I am sure you know how the injustice arises, but here it is. (What I am asking you to do is to write to the Attorney General so, if you’d prefer, you can scroll down to the Write to the Attorney General section.)

  1. Assume that on the day of marriage the wife owns a home at 123 Res Ipsa Avenue and it was worth $250,000.00.
  2. She and her husband live in that home for 12 years following the date of marriage and then they separate.
  3. At the date of separation the matrimonial home is worth $650,000.00.
  4. The wife is required to include in the calculation of her net family property value the whole amount of the $650,00.00 value of the home on separation without being able to deduct the value of the matrimonial home on the date of marriage, the sum of $250,000.00. Ignoring all of their other assets and debts for the moment, the wife would owe the husband one half of the separation date value of the matrimonial home, i.e., $325,000.00.
  5. Consider the huge difference to the wife’s NFP value and the equalization payment she would owe if eight years into the marriage she sold the family home at 123 Res Ipsa Avenue and bought the house around the corner at 52 Laches Avenue. She and her husband live in the home on Laches Avenue for the next four years and then they separate at which time 52 Laches Avenue is $650,000.00.
  6. In this second situation the wife includes the separation date value of the second property on Laches Avenue, the sum of $650,000.00 in her NFP, but she is also entitled to deduct the date of marriage value of 123 Res Ipsa Avenue, the sum of $250,000.00.
  7. Her net family value is $400,000.00 ($650,000.00 less $250,000.00).
  8. In the second calculation the wife owes the husband one half of $400,000.00 which is $200,000.00. She would pay her husband an equalization payment that is $125,000.00 less than in the first example.
  9. Why? ………because they moved around the corner.
  10. Is there anyone in the judiciary, the bar, the A.G or academia who thinks this makes any sense?

Here Are Some Questions

Question A:

What is the justification for not permitting the date of marriage value of the matrimonial home, the home occupied by the parties at the date of separation, in the calculation of a party’s net family property value?

Question B:

If the home that a couple live in on the date of marriage is, in some undefined way, special, why is the owner penalized financially, in this example to the tune of $125,000.00, if she does not sell it before she and her husband separate? How special is that? How many millions of dollars have Ontario residents needlessly paid because of this ridiculous legislation?

Question C:

Is there an assumption not explained in the legislation that if a couple live in the same house for the whole of their period of married cohabitation that the non-titled spouse is deemed to have made some sort of contribution that entitles him to a huge reward, a contribution that he would not have been deemed to have made had he and his wife moved around the corner prior to separation?  Whoever drafted section 4 FLA did not do the math. Could it be that the drafters thought that the anomalous treatment of the matrimonial home would encourage parties not to separate? That does not make any sense. What do you think is the reason or, after all these years, does it matter?

Question D:

Is there any question that the application of provisions of Part I in the example above leads to a result that is not only not an “orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership” but is completely devoid of any rational basis and justified by no principle enunciated in the Act? Is there a decision that explains this anomaly? If there is, please let us know.

Question E:

Why shouldn’t the Act be amended to remove this anomaly? Again, how hard would it be to make this change? And why has it never been done? It isn’t that courts in Ontario have not recognized that this special treatment of a matrimonial home makes no sense. Here is how hard it is:

“net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,
(a) the spouse’s debts and other liabilities, and
(b) the value of property that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities calculated as of the date of the marriage;

Striking out the references to the matrimonial home takes all of about fifteen seconds. So, why do we still have this nonsense thirty years later?

Question F:

When the Ministry of the Attorney General finally did amend section 4 after twenty two years, why did it further entrench this anomaly by adding the words in subparagraph (b) of the definition of “net family property”, “other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home”  rather than simply striking out the words “other than a matrimonial home”? It is inconceivable that the A.G. was unaware of this anomaly.

Judicial Treatment & Comments

Here are a few of the comments judges have made over the years about the anomalous treatment of the matrimonial home in the definition of “net family property”. This is not all them, just some of them.

There are two problems identified. Although case law clarified at this point years ago, until recently the definition of “net family property” expressly stated that the value of a matrimonial home owned on the date of marriage did not form a part of the owner’s date of marriage property but did not expressly exclude mortgages registered against the home on the date of marriage.

The real problem is the second problem which continues to this day, i.e., the inability to deduct the date of marriage value of the matrimonial home.

1. M. v. H. [1987] O.J. No. 1512; 1987 CarswellOnt 2397

Initially, judges followed the wording of the legislation literally and while they disallowed the value of the matrimonial home on the date of marriage, they included the date of marriage unsecured monies owing with respect to the purchase of that home. Fleury, J. of the Ontario District Court in Hamilton wrote as follows:

The more difficult question concerns the inclusion or exclusion from this computation of the sum of $35,000 borrowed in order to purchase matrimonial home. This difficulty highlights one of the shortcomings of this hastily drafted piece of legislation. While section 4 (1) (b) clearly eliminates the matrimonial home from consideration in computing the value of property owned on the date of marriage, it does not show the same discriminatory bent when addressing the quantum of debts.

2. H.v. H. [1989] O.J. No. 2575; 1989 CarswellOnt 335

Walsh, J. of the Ontario Supreme Court in Toronto (HCJ) in referring to the inability of the wife to deduct the date of marriage value of the matrimonial home said,

This result occurs mainly as by s. 4 (2) 1 of the Act, a matrimonial home is not excluded property, a provision which has been universally criticized as being grossly unfair and inequitable.

3. L. v. L. [1990] O.J. No. 944; 1990 CarswellOnt 246

Flinn, J. of the Ontario District Court in London followed Justice Fleury and included the mortgage debt of a matrimonial home owner on the date of marriage but denied the inclusion of the value of the home on the date of marriage.

4. D. v. D. [1990] O.J. No. 1916;1990 CarswellOnt 314

In this decision Mr. Justice Granger of the Ontario Supreme Court (HCJ) distinguished the decision of M. v. H., above, saying that in that earlier decision the monies borrowed to purchase the matrimonial home were not secured by a mortgage against the title to the property. After stating that the house could not be sold without discharging the mortgage or least reducing the value of the house, Granger, J. held that it would be absurd to omit the date of marriage value of the matrimonial home but to include the date of marriage mortgage balance.

5. R. v. K. [1991] O.J. No. 1634; 1991 CarswellOnt 341

In this decision, Feldman, J. Of the Ontario Court of Justice, General Division at Toronto said,

It has been held in some cases decided under the new Act, that although it is patently unfair for a spouse who brings a matrimonial home into the marriage to exclude the entire market value of the home from the deductions from the net family property and also to further reduce his or her deductions by the amount of the debt on the property, that is the result mandated by the wording of the Act. Counsel the wife quite fairly submitted that although the law favoured his clients position, this result clearly demonstrates a hole in the Act, and that the more logical and equitable result was the one reached in the case of D. v. D.[above]….

Justice Feldman adopted the reasoning of Granger J., finding that,

….the Legislature did not intend either of these anomalous results but rather intended that the term “value”, when used in respect of specifically encumbered property, means the [un]encumbered value or the equity.

6. M. v. M. [2001] O.J. No. 5939; 2001 CarswellOnt 5437

In this decision, Donahue, J. of the Ontario Superior Court of Justice found that following the wording of the definition of “net family property” literally would lead to “an anomalous result”. He went on to say that,

Although anomalous, the wife argues that the law mandates this result. The husband might be tempted to quote the beadle in Oliver: ‘If the law says that, the law’s an ass!’

7. N. v. N. [2002] O.J. No. 1956; 2002 CarswellOnt 1754

In this decision of Justice Marshman of the Ontario Superior Court of Justice, Family Court, at London, in dealing with the problem of the definition of “net family property” quoted from the case law set out above and allowed the date of marriage mortgage to be ignored in the NFP calculation. She also stated as follows with respect to the inability to include the date of marriage value of the matrimonial home in calculation of the owner’s date of marriage property value,

Section 4 (1)(b) of the Family Law Act imposes a special burden on the spouse who brings a matrimonial home into the marriage by not permitting the spouse to deduct the marriage date value of the home in calculating his or her net family property. The legislature must have determined that the special character of the matrimonial home justified this special burden.

(Maybe so, but no decision that I am aware of explains that “special character”.)

8. C. v. T. [2002] O.J. No. 2879; 2002 CarswellOnt 2443

This is a decision of the Ontario Court of Appeal. The Court recognized that,

Section 4 (1) (b) of the Family Law Act imposes a special burden on the spouse who brings a matrimonial home into the marriage by not permitting this post to deduct the date of marriage value of the home in calculating his or her net family property. The legislature must have determined [in the words of Justice Marshman] that the special character of a matrimonial home justified the special burden.

The wife, the sole owner, borrowed money for the purchase of the home before the date of marriage but it was not secured by a mortgage. The Court of Appeal, however, agreed with the trial judge who found a way to remedy the problem of the monies not being secured by a mortgage by finding that, “…a housing loan that meets the requirements of the Income Tax Act is sufficiently similar to a mortgage that the amount of the housing loan should not be deducted from the marriage date value of the property owned on the date of marriage.”

The income tax consequences to the wife of disposing of the home “represent a sufficient link between the death and the matrimonial home to bring the case within the principle from D., H. and R. v. K..”

9. M. v. M. [1989] O. J. No. 2125; 1989 CarswellOnt 333

In this decision, the husband and wife lived in a home on the date of marriage that was situated on a 3 acre parcel of land owned by the husband. Not long after the date of marriage, the parties built a new home on the three acres and the first home was demolished.

The husband was not  allowed to deduct the date of marriage value of the first home. Mr. Justice Saunders stated as follows:

In my view, the fact that the dwelling at the date of marriage was not the dwelling at the date of separation makes no difference.  The matrimonial home at the time of separation was the real property comprising the three-acre parcel of land. It was ordinary occupied by the parties as their family residence.  It was the same real property that was owned by the husband prior to marriage. In my opinion, the statute is incapable of any other interpretation. [emphasis added]

While it is true that “property” means real or personal property in section 17 FLA, to be a matrimonial home, in section 18 FLA, a property must, at the date of separation,  be “ordinary occupied by the person and his or her spouse as their family residence“. The statute may not be capable of any other interpretation, but does it make any sense?

10. J. v. K. [2013]O.J. No. 36; 2013 CarswellOnt 160

This is another case that shows how illogical the treatment of the matrimonial home can be. On the date of marriage the wife owned a condo but she and her husband lived elsewhere. However, between the date of marriage and the date of separation the parties moved into the condo. The wife was not permitted to deduct the date of marriage value of the condominium, even though she and her husband weren’t living in it at the date of marriage.

11. M. v. W. [2016] O.J. No. 6520; 2016 CarswellOnt 19883

In this case, the court found that because the FLA “has made special arrangements with respect to the matrimonial home, as compared to other property, and hence, it is distinct from other property…..”, the financial consequences to a spouse resulting from his inability to deduct the date of marriage value of the matrimonial home cannot be said to be shockingly unfair, i.e., unconscionable. It was the intention of the Legislature to prevent the date of marriage value to be deducted.

The fact that the husband “brought the matrimonial home into the marriage and is required to account for it as his property for equalization purposes, and without deduction of the value of it at the time of marriage, is not, in and of itself, unconscionable. Rather, it is the way the statute intends for equalization to work.”

Therefore, the husband could not argue that simply having to comply with the FLA was sufficient to found a claim for it an unequal division under section 5 (6) FLA.

12. T. v. T. [1995] O.J. No. 2828; 1995 CarswellOnt 1082

This final case is an example of what probably every family law lawyer in Ontario has encountered, i.e., a client who before separation inherits money and uses it to pay down or pay off the mortgage on the matrimonial home and then finds, when they meet with us, that had the money been put into an account in his or her name alone, it would have been excluded property but is lost when it goes into the matrimonial home and cannot be traced. As the Court the said in this case, “In our view the Family Law Act is clear and thus ….”

That is correct. The FLA is clear. It’s just that it’s also absurd and results in unconscionable financial consequences which are simply indefensible.

How many millions of dollars have family law litigants lost in the last 30 years because of the illogical treatment of the matrimonial home?

“The Report on Family Property Law” – Ontario Law Reform Commission (1993)

The 1993 Ontario Law Reform Commission Form Commission Report on family property law makes the following observations and recommendations:

Page 14:

The Legislature chose not to implement the Commission’s recommendations for automatic co-ownership of the matrimonial home [Ontario Law Reform Commission, Report on Family Law, Part IV, Family Property Law, Toronto, Ministry of Attorney General, 1974, pp. 134-135]. Instead, the Legislature attempted to protect the interest of the non-owning spouse by ensuring that the value of the matrimonial home is always included in the calculation of the net family property of the titleholder and by granting the non-owning spouse special rights during cohabitation in Part II of the Family Law Act.

Page 79:

The statutory treatment of the matrimonial home leads to certain inconsistencies of result. Some of the inconsistencies are caused by the definition of “matrimonial home” in the Act. To satisfy the definition, the property must be occupied by the spouses at the valuation date. As a result, if spouses occupy one home for most of the marriage, but have moved before the valuation date to another property – whether rented or owned– the special status of the home applies to the latter. This creates an inconsistency in treatment between similarly situated parties. If a spouse who, at the date of marriage, owns a house in which she lives with her husband until separation, she must include that asset in her net family property and may not claim a deduction. Another couple may live in a house owned by one spouse at the time of marriage but move shortly before separation into another house. The owning spouse in the latter example may claim a deduction for the value of the couple’s first home, which she brought into the marriage. It has been observed that these rules will catch only the unwary owning spouse.

A second implication of the current provisions is that the rules privilege a spouse who possesses other forms of premarital property. For example, if, at marriage, one spouse (“A”) owns a residence worth $100,000.00, which the couple choose to live in, while the other (“B”) holds investments valued at $100,000.00, the statute allows only the latter to make a deduction for the value of his premarital property. If both assets double in value during the course of the marriage, and for the sake of simplicity it is assumed that each spouse has no other property or liabilities, spouse A will have a net family property of $200,000.00 and spouse B will have a net family property $100,000.00. Spouse A will have to make an equalization payment of $50,000.00 to B. Yet if spouse A had chosen to invest her capital in any other asset other than the home, the statute would not impose an equalization obligation.

A third inconsistency created by these provisions relates to tracing. Excluded property is not traceable into a matrimonial home. As an example, if a spouse chooses to pay off the mortgage on the matrimonial home using an inheritance, she may not exclude that sum from her net family property. If she invested her inheritance in a guaranteed investment certificate or other instrument held in her own name, she would be able to exclude this asset from her net family property. Again, these rules will catch only the unwary. Their impact, for those who are aware of them, is to discourage a spouse from applying capital in what might otherwise be the most advantageous manner.

Courts identified a further problem with the treatment of the matrimonial home in Part I*. The statute does not clearly indicate how debts associated with the matrimonial home owned before the date of marriage should be treated. Generally, a premarital debt is added to the debtor spouse’s net family property. Such debts may be set off against the equity in premarital assets, but the equity in the matrimonial home may not be deducted from the net family property of the owner spouse. In applying these provisions, most courts have held that the value of a charge registered against a matrimonial home should not be included in the spouse’s net family property. It is unclear, however, whether courts will also ignore an unregistered premarital debt associated with the purchase of a matrimonial home. The predominant approach of ignoring charges registered against homes owned at the date of marriage appears sensible. It has the result, however, of placing a spouse who purchased such home with a mortgage in a better position than one who purchased a residence for cash but incurred an unrelated debt before marriage. [*This has now been remedied by the expanded definition of “net family property” in section 4, though that didn’t happen until 2009.]

Overall, the current treatment of homes in Part I of the Act leads to arbitrary results. The rules may be manipulated by a knowledgeable spouse to minimize their impact. The same rules may disadvantage a spouse is not aware of their implications. The current scheme is unsatisfactory because of the disparities it creates between similarly situated parties.

After discussing possible reforms to the anomalous treatment of the date of marriage value of the matrimonial home, i.e., firstly automatic ownership of the matrimonial home as proposed by the 1974 Report and a limited co-ownership of the matrimonial home, the Commission in its 1993 Report recommends the termination of the special treatment given to the matrimonial home. The 1993 Report states as follows at page 84:

A more radical reform, but one in keeping with the central principle of Part I of the Act, would be to end special treatment of the matrimonial home under Part I. This would have the advantage of allowing owner spouses to take advantage of statutory deductions and exclusions. It would also allow spouses to continue to allocate ownership of the matrimonial home to protected it from creditors, as they are able to do other assets. …… The need to protect the interest of the non-owner spouse in the preservation of an asset which provides shelter and is often the family property of the greatest value, would continue to be guaranteed by the provisions in Part II of the Act.

On page 85 the Report states:

The disadvantage of this approach is that the non-owner spouse will not share in the benefits of ownership, both psychological and practical, although in many cases both spouses may regard the property as “our home” and each may have contributed to its acquisition and maintenance. In most of those cases, however, the value of the home will continue to be shared because it will be included in the net family property of the titleholder, although subject to any deductions, debts or liabilities of that spouse.

Further on page 85 the Report states:

In our view, the potential disadvantages of ending special treatment of the home in Part I are outweighed by the advantages. This amendment would prevent disparities in the treatment of similarly situated parties and accord with the rationale the spouses should share only wealth generated by the marital partnership. At the same time the provisions of Part II of the Act will continue to recognize the special nature of the home.

The Commission recommends that paragraph (b) of the definition of “net family property” in section 4 (1), and section 4 (2) of the Family Law Act should be amended to delete the special treatment of the family home [“matrimonial home”] for the purposes of Part I of the Act.

The following appears in the Summary of Recommendations of the Commission Report at page 145

Exclusions, Deductions, and Special Treatment of the Matrimonial Home

….

7.  Paragraph (b) of the definition of “net family property” in section 4 (1), and section 4 (2) of the Family Law Act should be amended to delete the special treatment of the family home [“matrimonial home”] for the purposes of Part I of the Act. (at 85)

How Hard Would Changing the NFP Definition Be? Not Very.

  1. Strike out a Few Words in the Definition of “Net Family Property”
  2. Make the Same Changes to the Definition of “Excluded Property”

Strike Out a Few Words in the Definition of “Net Family Property”

Why not amend the definition of “net family property” in section 4 (1) of the Family Law Act so that the value of all property owned on the date of marriage is deducted from the net value of the date of separation property? Instead of the amendments made by Bill 133 to subparagraph (b) of the definition of “net family property”, why not amend the definition of “net family property” so that the definition is consistent with the Act?

Why not amend subparagraph (b) of the definition of “net family property” by omitting the words “other than a matrimonial home” and “other than debts… of a matrimonial home” so that subparagraph (b) would read as follows:

(b) the value of the property that a spouse owned on the day of marriage, after deducting the spouse’s debts and other liabilities, calculated as of the date of marriage

Here is the proposed definition showing references to the matrimonial home struck out:

“net family property” means the value of all of the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,
(a) the spouse’s debts and other liabilities, and
(b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage;

Make the Same Changes to the Definition of “Excluded Property”

In order to completely remove the anomalous treatment of matrimonial homes, two further amendments are necessary. They both are found in section 4 (2) of the Family Law Act dealing with excluded property. Here is the definition of “excluded property” without the references to the matrimonial home:

(2) The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property;
1. Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.
….
5. Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.

….

What Can We Do?

Write to the Attorney General

We can write to the Attorney General and ask her to change the anomalous treatment of the date of marriage value of the matrimonial home in the equalization of net family properties under Part I of the Family Law Act… or, something to that effect. You’re a lawyer, just make something up.

Here is her address followed by some suggested wording:

The Honourable Caroline Mulroney
Attorney General
Ministry of the Attorney General
720 Bay Street
11th Floor, McMurtry-Scott Building
Toronto, Ontario
M5G 2K1

Suggested Wording of Your Letter

Dear Minister Mulroney,

I am a lawyer practising family law in Ontario and I am writing to you to ask that amendments be made to the definitions in section 4 of the Family Law Act that include a reference to the date of marriage value of a matrimonial home.

This is a problem that has been recognized ever since the Family Law Act came into effect 30 years ago.

Here is the 1993 recommendation of the Ontario Law Reform Commission “Report on Family Property Law” which the Government of Ontario has never accepted but which has the support of the bench and bar of this Province:

“The Commission recommends that paragraph (b) of the definition of “net family property” in section 4 (1), and section 4 (2) of the Family Law Act should be amended to delete the special treatment of the family home [“matrimonial home”] for the purposes of Part I of the Act.”

The basis for the Commission’s very sensible recommendation is clearly set out in its 1993 report (for example, on pp. 14 & 15). As well, the current anomalous treatment of the date of marriage value of the matrimonial home has resulted in a great many irrational and unconscionably unfair financial penalties being incurred by spouses in the determination of the equalization claims of separated people in Ontario.

The inability to deduct the date of marriage value of the matrimonial home in the calculation of the parties’ net family property values has also been criticized in numerous decisions of the Ontario Superior Court of Justice. There is in Ontario, to my knowledge, no support for the current treatment of the date of marriage value of the matrimonial home in the equalization of property.

[OPTIONAL] I am attaching/enclosing the following material that explains the anomalous and unfair inability to exclude the date of marriage value of a matrimonial home in calculating separated spouses’ net family property values and the resulting net equalization payment:

I am writing to ask that the definition of “net family property” in subsection 4 (1) and “excluded property” in subsection 4 (2) of Part 1 of the Family Law Act be amended to remove the references to the matrimonial home.

Yours truly,

——————

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