Can a Sailboat Be a “Matrimonial Home”?
I have written in prior blog “5 Things That Make the Matrimonial Home Unique” that the definition of “matrimonial home” is generally defined by Ontario Family Law Act as being any property “ordinarily occupied” by the spouses and their family on the separation date. This can include any type of housing including condominiums and mobile homes; in some cases the definition will even extend to cover a frequently used second-home, most often a family cottage.
But what about a sailboat? Can it be a “matrimonial home” too?
This was the question in the older case of Clark v. Clark. After separation the wife and youngest daughter continued to live in the house that they all had previously shared, but when he moved out the husband took with him a 29-foot sloop. The court found that the family “generally had a tradition on this boat during the summers for a good number of years”.
In considering the definition of “matrimonial home” under the applicable law (which in this case was the predecessor to the current Ontario Family Law Act), the court said:
I think a cottage has been in a sense declared a matrimonial home, being an adjunct of the regular home of the family, in the past, and I frankly see no reason why the extra home or cottage should therefore be restricted to a question of evaluation of accommodation or mobility, once the principle of an alternative home has been established. The fact that that alternate home moves in some way, and that it may be difficult to locate under some circumstances, or that it may have some restrictions of accommodation I think is not necessarily relevant, as long as it is shown that the general use of the property or thing has been used by the family as an alternative residence while the family was on vacation.
While dismissing the husband’s stated concerns over the wife’s competency and ability to maintain and take care of the sailboat, the court declared the home an alternative matrimonial home and transferred exclusive possession to the wife for a particular long weekend that she had requested, to be returned to the husband afterward. In this context – and after adding that it had assessed the wife’s ability to manage and care for it – the court concluded that the wife was capable of operating the boat in a satisfactory manner, but added that she “should not take the boat under any circumstances unless she is assured, as well as the husband, that there is sufficient insurance on the boat and that it is effective while she has the boat in her possession.”
For the full text of the decision, see:
Clark v. Clark (1984), 40 R.F.L. (2d) 92, 1984 CarswellOnt 241 (Ont. Master)