Can I Make My Spouse Leave the House After Separating in Ontario?

After a separation, living under the same roof can feel impossible. It is natural to ask whether you can simply tell your spouse to go, especially if the home is in your name.

In Ontario, the answer is usually no, at least not on your own. This article explains the rules for married spouses, how a court can order one spouse to have the home, what to do if safety is a concern, and why acting alone can backfire.

Both spouses usually have an equal right to the home

A matrimonial home is every property in which a spouse has an interest and that is, or was at the time of separation, ordinarily occupied by the spouses as their family residence.

Both spouses have an equal right to possession of a matrimonial home, whoever holds title. Without a court order, a non-owning married spouse cannot be put out of the home simply because the other spouse owns it.

There is an exception after the marriage ends. Where only one spouse has an interest in the home, the other spouse's right of possession is personal as against the owner, and it ends when they stop being spouses unless a separation agreement or court order provides otherwise.

Neither spouse may sell or mortgage an interest in the matrimonial home unless the other spouse joins in or consents, has released their rights by separation agreement, a court order authorizes it, or another property is validly designated and registered as the matrimonial home.

Asking a court for exclusive possession

Regardless of who owns the home, a court may order that one spouse be given exclusive possession of the home, or part of it, for a period the court directs. The court may also order periodic payments, deal with the contents, and order payment of repairs and maintenance.

A court can make a temporary or interim order on a motion, so you do not always have to wait for the whole case to finish.

The court must consider the following when deciding whether to make the order:

• the best interests of the children affected
• any existing property and support orders
• both spouses' financial positions
• any written agreement between the spouses
• whether other suitable and affordable accommodation is available
• any violence by a spouse against the other spouse or the children

When weighing a child's best interests, the court considers the possible disruptive effects on the child of moving, and the child's views and preferences if they can reasonably be ascertained.

If you are not safe at home

Ontario says a married person can ask the court for exclusive possession of the family home even if the home is in the spouse's name. A person in danger should call 911 or local police immediately.

A person abused by a spouse or partner can also ask the court for a restraining order. The order can require the person to stay away generally, or from specific places such as the home, workplace or the children's school.

Safety planning is about more than paperwork. A lawyer or a Family Law Information Centre can help you understand which steps fit your situation.

Why changing the locks is risky

Locking out your spouse may feel like the fastest fix, but it can work against you. Because a married spouse generally cannot be put out of the home without a court order, a lockout can look like you took the law into your own hands.

• It can escalate conflict and put you or the children at risk.
• It can hurt your credibility when you later ask a court for help.
• In a parenting case, the court gives primary consideration to the child's physical, emotional and psychological safety, security and well-being, and the history of care of the child is one factor it weighs, so moving out and leaving the children's day-to-day care with the other parent can become part of that history.
• It does not change who has legal rights to the home.

If you are not married, the matrimonial home rules in Part II of the Family Law Act apply to married people only, and Ontario's guidance tells unmarried people to contact a lawyer about their rights and options regarding the home. Your position may depend on who is on the title or the lease.

What to do next

• If you are in danger, call 911 or local police first.
• Do not change the locks or remove your spouse's belongings without advice.
• Gather the title or lease, mortgage statements and details of who lives in the home.
• Write down where the children would live and how a move would affect them.
• Ask a lawyer about a motion for interim exclusive possession or a restraining order.

Ontario's Family Law Information Centres are free services that give information about separation, divorce and related family law issues. They have information and referral coordinators and duty counsel provided by Legal Aid Ontario.

Frequently asked questions