E. Division of Property; Possession of Matrimonial Home

Author:Julien D. Payne - Marilyn A. Payne

Page 421

The Divorce Act confers no jurisdiction on a court to order the transfer of a parent’s interest in the matrimonial home in satisfaction of lump sum orders for retroactive and prospective child support, but the court may direct the orders to be secured against the obligor’s interest in the matrimonial home for so long as the payee parent retains exclusive possession of the home.220Partition and sale of a matrimonial home held by spouses under joint tenancy may be denied where the non-custodial spouse cannot or will not pay child support.221Where a non-custodial parent is unable to provide reasonable support for her children, it may be appropriate for a court to grant long-term possession of the former matrimonial home to the custodial parent.222A custodial parent may be granted a greater share of the matrimonial home pursuant to section 65(1)(e) or (f) of the British Columbia Family Relations Act where the non-custodial parent is unable or unwilling to make a substantial contribution towards child support,223 but an order for an unequal division of the family assets in favour of the custodial parent may be improper by reason of logical inconsistency where it is offset by an order for spousal support.224An unequal division of matrimonial property by way of a postponed sale of the matrimonial home may be justified under section 13(h) of the Nova Scotia Matrimonial Property Act on the basis of the needs of a child under the age of majority. It is not necessary in every case for the custodial parent to present evidence that harm would be suffered by the child as a result of a move or to demonstrate that there is no adequate alternative shelter.225Where a court-ordered matrimonial property division is coupled with an order for child support based on the husband’s imputed income, the court may order the husband to transfer his interest in the matrimonial home to his wife and direct her to mortgage back to her husband the amount owing, without interest, until the child attains the age of majority or the home is sold or the mortgage is paid in full, whichever is earlier. This may serve to provide security for child support payments, with any outstanding arrears being deductible from the mortgage payout.226

Page 422

An unequal division of matrimonial property may be ordered pursuant to The Matrimonial Property Act, 1997 (Saskatchewan) where there is no possibility of obtaining child support, but that should only be done as a last resort...

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