Skip to content

Mortgage Default and the Matrimonial Home

 mat home

Mortgage Default and the Matrimonial Home

As if Family Law wasn’t complicated enough, scenarios involving separation and divorce can get tricky in cases where the matrimonial home is subject to a mortgage that goes into default because the mortgage payments have not been kept up.

Fortunately, Ontario’s Family Law Act makes special provision to deal with at least one of the trickier scenarios. To illustrate:

Let’s assume that only one of the spouses has legal title to the matrimonial home, which is subject to a mortgage. But – as regular readers of my blog will know – one of the provisions of the Act expressly grants both spouses and equal right to possession, irrespective of which of the spouses has legal title. Furthermore, if the couple decides to separate, a court may decide after assessing the situation that the spouse who does not own legal title should nonetheless have exclusive possession of (i.e. the right to live in) the home pending a final determination of the issues between them.

So in our sample scenario, the spouses have separated and the non-titled spouse has possession of the matrimonial home.

Next, let’s suppose the mortgage payments on the home aren’t made, and the mortgage goes into default. The lender wants to exercise forfeiture or power of sale proceedings.

A different provision of the Act states that, where someone like a lender is looming due to a mortgage default, the spouse with the right to possession has the same right of redemption or relief against forfeiture as the other spouse, and is equally entitled to notice about the lender’s intended steps.

In other words, even if the spouse doesn’t have legal title to the matrimonial home, the legislation grants him or her not only the same right to possession as the other spouse, but also the same redemption rights that arise to allow for relief against forfeiture. He or she must comply with the same rules of procedure and legislation as the other spouse, in connection with how those rights are to be exercised.

These provisions strive to strike a fair balance between: 1) the spouse who has legal title; 2) the spouse who doesn’t have title, but has court-ordered possession; and 3) the lender who is poised to exercise its rights triggered by the default on the mortgage.

Do you have questions about the effect of a mortgage default on a matrimonial home? We can help.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

 

One Comment
  1. Thanks for giving your ideas. The first thing is that pupils
    have a choice between government Home Mortgage Rates Canada plus a private Home
    Mortgage Rates Canada where it is easier to go for Home Mortgage Rates Canada debt
    consolidation Mortgage Rates Canada than over the federal Home Mortgage Rates Canada.

    One important issue is that when you are searching for a Home Mortgage
    Rates Canada you may find that you will need a cosigner. There are many circumstances where this is true because you could
    find that you do not possess a past Mortgage Rates Canada standing so the
    bank will require that you’ve got someone cosign the financing for you.
    Great post.
    Many thanks for this article. I might also like
    to convey that it can possibly be hard when you’re in school and merely starting out to establish a long history of Mortgage Rates Canada.
    There are many college Homes who are simply trying to survive and have
    a good or positive Mortgage Rates Canada history can sometimes be
    a difficult element to have.
    I have learned quite a few important things via your post.
    I’d also like to say that there may be a situation where you will obtain a Mortgage Rates Canada and don’t need a co-signer such as a U.S.
    Home Aid Mortgage Rates Canada. In case you are getting a
    Mortgage Rates Canada through a traditional financier then you need to
    be willing to have a cosigner ready to make it easier for you.
    The lenders can base their decision using a few elements
    but the most important will be your Mortgage Rates Canada history.
    There are some Mortgage Rates Canada merchants that will in addition look at your job history and choose based
    on this but in almost all cases it will hinge on your rating.

    One other issue is when you are in a circumstance where you do not
    possess a cosigner then you may really need to try to wear out
    all of your school funding options. You can get
    many funds and other grants that will supply you with funds that can help with classes
    expenses. Thanks for the post.

    June 7, 2014

Comments are closed.