“Section 18 of the FLA provides as follows:
Every property in which a person has an interest and that is or, if the parties 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.
The definition of matrimonial home in s. 18 of the FLA indicates that four conditions must exist for a property to qualify as a matrimonial home:
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- One of the spouses must have an interest in the property;
- The property was ordinarily occupied by both spouses;
- The joint occupation existed at the time of separation; and
- The property was occupied as a family residence.
Section 18 of the FLA clearly contemplates that spouses can have more than one matrimonial home at the same time. Deciding whether a property qualifies as a matrimonial home within the definition of s. 18 of the FLA is a fact specific analysis focused on determining whether the parties ordinarily occupied the property as a family residence at the time of separation.
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To determine if a property is “ordinarily occupied”, the court in Farnsworth v. Chang, 2014 ONSC 1871, noted the following:
[55] In Oliver Estate v. Oliver, 2012 ONSC 718, at paras. 47-49, the court recognized the flexible and even minimal occupation requirement of the designation of a matrimonial home:
…the jurisprudence also makes clear that the court must engage in flexible and contextual analysis of ordinary occupation…In Goodyear v. Goodyear, 1999 CanLII 20759 (ON SCDC), [1999] O.J. No. 29 (C.J.) at para. 46, Perkins J. noted that “to occupy something 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 LeCouter, 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”.
I find that the preponderance of evidence in this case establishes that the Colonization Rd. home is a matrimonial home within the meaning of s. 18 of the FLA. The word “ordinarily” is synonymous with “normally”, “commonly” and “regularly”. In my view, this residence was “regularly” occupied by the parties between 2012 and 2018 and was “regularly” occupied by them at the time of separation.”
Peters v. Peters, 2024 ONSC 1526 (CanLII) at 108-110, 121-122