Yesterday, I blogged on a case that considered whether a cottage could be considered a second “matrimonial home” for equalization purposes under the Family Law Act. Today, I would like to consider a case that addresses whether a home that was vacated by a claimant prior to the spouse’s death could be considered to be a “matrimonial home”.

In Brash v. Zyma, 2013 ONSC 2800 (CanLII), the 90 year old widow vacated the home and moved into an assisted care facility as a result of her medical condition. Her husband remained in their home. The husband subsequently died. The surviving spouse commenced an equalization claim under the Family Law Act. The husband’s estate argued that the home was not a “matrimonial home” at the time of death, and therefore the value at the date of marriage should be deducted from the husband’s NFP.

The court considered the wording of s. 18(1) of the Family Law Act, and the question of whether the fact that the spouse was not residing at the property on the date of death impacted on her claim for equalization.

Section 18(1) reads: “Every property in which a person has an interest and that is or, if the spouses 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 court had to consider whether, at the time of “separation”, the property was ordinarily occupied by the wife and her spouse. The court noted an earlier decision of Gray v. Brusby, 56 R.F.L. (6th) 165, where Greer J. stated that “there are many cases where only one of the spouses remains in the home, either on consent of the parties or under court Order. In those cases, the matrimonial home remains such for NFP purposes.” The court went on to observe that physical separation does not equate to a separation of the parties. Here, the parties never intended to separate, or ceased to be married, or ceased to be a couple, or commenced living their lives without the other. 

As the widow ceased to reside in the matrimonial home as a result of her deteriorating medical condition, and not by reason of any intention on her part, the court concluded that the home was “ordinarily occupied” by her on the date of death, and thus was a matrimonial home, and the value of the home at the date of marriage could not be deducted in the equalization calculation.

Have a great weekend.

Paul Trudelle