Does Moving Out Hurt My Rights to the Home in Ontario?

Many people stay in a painful home because they fear that leaving means giving up the house. Others have no choice because of conflict or safety. Either way, the worry is real: does moving out hurt your rights?

This article explains how possession and ownership work for the matrimonial home in Ontario and what to consider before you go. It is general information. Your circumstances, including whether you are married, can change the answer.

Possession and ownership are different things

Ownership is about who holds title. Possession is about the right to live in the home. Under the Family Law Act, both spouses have an equal right to possession of a matrimonial home regardless of who owns it. Being off title does not remove that right.

Ownership also does not decide how the home's value is treated on separation. For married spouses, the matrimonial home's full value is shared even if one spouse owned it before the marriage or received it as a gift or inheritance. A gifted or inherited family home does not count as excluded property.

Does leaving cost you your claim?

The rules above do not say that moving out ends your possession right or your share of the home's value. Property acquired during a marriage must be split equally when the marriage ends for any reason. But leaving can still create practical risks. The person who stays may argue that the arrangement should continue, may change the locks, or may try to sell or refinance. How a court views a departure depends on the facts, including why you left, so ask a lawyer before you go.

If you are not married, the rules differ. Common-law couples are not legally required to split property acquired while they lived together, though they may set property rights in a cohabitation agreement. Whether you have rights in the home as a common-law partner depends on ownership and other facts, and a lawyer can confirm.

Tools that protect the home and your position

One spouse can register a designation of a matrimonial home alone, on property owned by the other spouse or both. It remains until cancelled by the person who made it, or removed on proof of a decree absolute of divorce, a court order, or death of a spouse. The possession right itself is not an interest in land and cannot be protected by a caution.

If the situation is unsafe or unworkable, a court can order exclusive possession regardless of ownership, including interim orders, and it considers factors such as the best interests of the children and any violence by one spouse against the other or the children. Contravening such an order is an offence and police may arrest without warrant. If you are afraid to stay, your safety comes first, and you should get advice promptly about options.

Children, money and the practical side of leaving

If you have children, think about the schedule before moving. Parenting arrangements cover where children live, time with each parent and who makes major decisions, and informal plans can be hard to enforce. A court deciding parenting matters considers only the child's interests, with primary weight on physical, emotional and psychological safety, security and well-being. Moving out without a plan can leave you with less time than you want, so try to agree on a schedule first.

Money also matters. Support is not automatic and must be raised. Child support depends on the number of children, the payor's province and annual income. Ask who will pay the mortgage, taxes, utilities and insurance, and write it down. Interim support orders are available from a court.

What to do next

• Get legal advice before you move, especially if you own or co-own the home or are on the mortgage.
• Photograph the home and list major belongings before you leave.
• Keep copies of the deed, mortgage statements, tax bills and insurance.
• Agree in writing on who pays which home expenses and who lives where.
• Take essentials, such as identification, documents and medication, and keep a key if it is safe to do so.
• Put any parenting schedule in writing and keep it consistent.
• Note your separation date, since time limits for equalization can run from it.

If you reach an agreement, have it in writing, signed and witnessed, and have each spouse get their own lawyer to review it. Free Family Law Information Centres can give general information about separation, though not legal advice.

Frequently asked questions