“The parties drew my attention to a number of cases which have interpreted the meaning of ordinary occupation [of the matrimonial home]. In Ledrew v. Ledrew, [1993] O.J. No. 596 (C.J.), Smith, J. explained that,
[t]he ordinary occupation which is required of a home in order to qualify as a matrimonial home is that it be occupied by the parties as a family residence. This requires that a significant part of the spouses’ time together be spent in and around the home and that the occupation of the home is not merely occasional or casual.
Based on this interpretation, Smith, J. found that the property in dispute, a cottage inherited by the wife during the marriage, did not constitute a matrimonial home due to lack of ordinary occupation. At the time of separation, only the wife and children used the cottage, with the husband attending one family function and performing some maintenance work. In the five years preceding and at the time of the separation, the parties spent no time together at the cottage whatsoever.
This interpretation has generally been followed in the case law. It was applied recently in Gauthier v. Gauthier, [2011] O.J. No. 3764 (S.C.) at paras. 188-189. In that case Bellegham, J. quoted directly from Ledrew in finding that there was no ordinary occupation of the cottage property in dispute because the parties did not treat it like a family residence nor did they spend a significant part of their time together there at the time of separation. The husband only attended the cottage three or four times a year and performed minor work on it.
However, the jurisprudence also makes clear that the court must engage in flexible and contextual analysis of ordinary occupation: see LeCouteur v. LeCouteur, 2005 CanLII 8726 (ON SC), [2005] O.J. No. 1141 (S.C) at para. 78. In Goodyear v. Goodyear, 1999 CanLII 20759 (ON SCDC), [1999] O.J. No. 29 (C.J.) at para. 16, Perkins, J. noted that “to occupy something ordinarily does not require constant or continual occupancy, nor does it require occupancy of every square metre.” In MacFarland v. MacFarland, 2009 CanLII 26349 (ON SC), [2009] O.J. No. 2149 (S.C.), Mackinnon, J. found that the parties need not be physically together when occupying the family home; they simply must both treat it as a family home.
Where usage is minimal or sporadic, the courts have focused on the intent of the parties. In LeCouteur, H.A. Vogelsang, J. held that, despite spending only five days at the property in dispute, ordinary occupation was found because the family’s “clear intent and purpose was to live there as a family.” In Durakovic v. Durakovic, [2008] O.J. No. 3537 (S.C.) at paras. 123-127, the parties owned several homes around the world and led a nomadic lifestyle, staying at the property in dispute sometimes together and sometimes individually. In finding certain property to be a matrimonial home, M.A.C. Scott, J. examined the express intention of the parties. In addition, Scott, J. considered how property was maintained.
It should be noted, however, that future intent does not factor into the analysis: see Da Costa v. Da Costa (1990), 1990 CanLII 8096 (ON SC), 29 R.F.L. (3d) 422 (H.C.) at para. 49; Baudanza v. Nicoletti, [2011] O.J. No. 457 (S.C.) at para. 19. Section 18(1) requires a determination of ordinary occupation at the time of separation; usage and intention post-separation is irrelevant.”