Catherine and Barry Robski were married for nine and a half years and had three children before they were divorced. They built a family home together, where all three children were born and raised. Upon the divorce, the wife is seeking to have her husband's half share in the matrimonial home postponed in order to give the children the best upbringing possible.
- Would it be unfair and unconscionable not to allow the wife and children to remain in the matrimonial home?
Judgement for the petitioner.
Goodfellow is satisfied that the house was indeed a matrimonial home, and that the triggering event for the Matrimonial Property Act to come into effect has occurred as the parties are getting divorced and they have lived separately for more than one year. He also states that all assets of married couples are matrimonial assets unless the party claiming otherwise can prove on a balance of probabilities that the disputed asset falls in one of the exceptions of s.4(1). There is also a presumption of equal sharing of the matrimonial assets on marriage breakdown, provided that it would not be unconscionable to do so. Therefore, the onus here is on the wife to prove that it would be unconscionable to let her husband have half of the interest in the home.
On the evidence she easily demonstrates this; the house is in a great neighbourhood; the kids are close to school and friends, etc. Therefore, she successfully gets a court order stating that there will be a delay in the division of the matrimonial home. There are several triggering events for this division to happen, including her remarriage or a six month common law relationship, when the three children reach the age of majority, or upon sale of the property. The title is transferred solely to the wife's name until the division.
- All assets of married couples are matrimonial assets, unless the party claiming otherwise can show on a balance of probabilities that the asset falls in one of the s.4(1) exceptions.
- Upon marriage breakdown, all matrimonial assets are to be shared equally (s.12), unless one party can show on a balance of probabilities that it would be unconscionable to do so (s.13); the equal division of matrimonial assets can be delayed in order to make the division fair.
- It is unconscionable to force children out of a matrimonial home if it will help their stable upbringing to remain there.