What does “exclusive possession of the matrimonial home” mean?
By Timothy Henderson | April 15, 2021
The Family Law Act (Ontario) permits both spouses, if married (but not common-law), an equal right to reside in the matrimonial home from the time they have separated until the divorce or disposition of the matrimonial home, unless the court makes an order otherwise. Because of the time that family law matters often take to resolve, this can often be months or even years.
However, subsection 24(1) of the Family Law Act allows one spouse to continue to occupy the home and have the other spouse removed from the home by obtaining either a temporary or final “order for exclusive possession of the matrimonial home.” This order may be an option if you and your ex-spouse can’t come to an agreement about who lives in the matrimonial home after separation or divorce, or there is a lot of conflict or domestic violence in the home and it is too difficult for you to live in the same house with your ex-spouse. Essentially, this order means your ex-spouse must move out while you remain in the home. It does not affect ownership of the home.
If you are married spouses
The first thing you have to answer is whether you are married or common-law. In law, this distinction makes a big difference and will give you different avenues for dealing with this issue.
Next, is the home you and your spouse have been living in your “matrimonial home”? The matrimonial home is the property that was usually used by married partners as their family home at the time they separated. There can be more than one matrimonial home. Even a rented property can be a matrimonial home. Your lawyer can help you determine this issue. In contrast, common-law partners cannot have a matrimonial home and apply for this relief under section 24 of the Family Law Act. (see below)
Once you have confirmed that a residence is the matrimonial home you can seek an order from the Court for exclusive possession. In order to apply for such an order, you have to be a married spouse. (If you are divorced, you can’t apply for exclusive possession because you are no longer “spouses”.)
This order is usually temporary. The court does not decide who owns the home (or who rented it) when deciding which partner can stay in it. This means that even if only one spouse is on the title to the matrimonial home, the spouse who is not on legal title may still be entitled to temporary possession.
Exclusive possession has nothing to do with ownership of the house and just because one spouse is given exclusive possession does not mean that they have rights to sell or mortgage the matrimonial home without the permission of the other spouse. If you are given exclusive possession, you may have to pay for upkeep and maintenance of the home. You can also change the locks while you have exclusive possession. These are all issues that should be discussed with your lawyer.
The Ontario Court of Justice does not have the authority to make an order for exclusive possession. In our jurisdiction of Thunder Bay, Ontario, this means that any court process seeking this would need to be started with an application in the Superior Court of Justice.
If you are common-law spouses
According to the Family Law Act (Ontario), you are a common-law couple if you are not married but have lived together continuously in a marriage-like relationship for a period of at least three years, or have a child together (biologically or adoptive) and live together. Common-law spouses do not have the right to apply for an order for exclusive possession under the Family Law Act. If you are a separated common-law partner, you should not take for granted that you can stay in the home, especially if you are not on title (or the lease, if rented). Seek legal advice promptly to best understand your situation.
How is exclusive possession awarded?
An order for exclusive possession is severe for the spouse who is being removed from the matrimonial home, as it essentially requires that spouse to leave his or her home, often with little or no warning, requiring that spouse to find other living arrangements regardless of his or her ownership in the home.
Because of this, courts only want to make orders for exclusive possession sparingly and when presented with convincing evidence that there is much conflict in the home and objective evidence has been presented. The fact that one spouse no longer wants to live with the other spouse is not, in itself, enough. When deciding whether to make an order for exclusive possession, the court will look at factors like:
- both partners’ finances
- if other suitable and affordable living arrangements can be made
- if one partner has been abusive towards the other or the children (abuse can constitute more than physical violence and courts have considered threats, harassment, and e-mail communications, but there still needs to be proof, and the spouse seeking exclusive possession needs to show that they have suffered some emotional/mental harm because of the actions of the other spouse)
- if there are any existing court orders or written agreements between the parties
If there are children, the court looks at the best interests of the child by paying special attention to:
- how a move might affect the child(ren)
- the child’s views and wishes, in appropriate cases
You can find more information about obtaining an order for exclusive possession here: https://stepstojustice.ca/steps/3-go-court-get-order-exclusive-possession
Questions about who gets to stay in the family home after separation or divorce? Talk to a family lawyer at Henderson Family Law to get the facts.
This content is provided as a general informational source by Henderson Family Law, and does not constitute legal advice or opinion, or establish a lawyer-client relationship. Every situation is complex and fact-specific, and appropriate advice will vary accordingly. Do not rely on this information for legal decision-making under any circumstances. Please consult with us and obtain proper advice and strategy concerning the specifics of your particular situation.