Who Stays in the House During a Divorce in Ontario?

When a marriage ends, one of the first practical questions is who keeps living in the house. Emotions run high, there may be children in the middle, and one spouse often feels they have the stronger claim because their name is on the title or they paid the mortgage.

This article explains in plain language how exclusive possession of the matrimonial home works in Ontario, what a judge considers, and how a temporary order is usually requested. It is general information, not legal advice, and the right approach depends on your facts.

What exclusive possession means

Exclusive possession is a court order that lets one spouse stay in the home and requires the other to leave. The idea is different from ownership. A married person can ask the court to let them stay and require their spouse to leave, even if the spouse owns the home.

That surprises many people. Ownership and the right to live in the home are separate questions.

The description above applies to a married person. If you were not married, the rules that apply can be different, so it is worth getting advice about your situation.

What a judge considers

In deciding who stays, the judge considers past violence, whether there is another suitable place to live, the children's best interests, and both parties' finances.

• Past violence: any history of violence in the home is part of the picture.
• Another suitable place to live: a spouse who has a realistic alternative may be in a different position from one who does not.
• The children's best interests: the judge considers what is in the children's best interests.
• Finances: the judge looks at both parties' finances.

For parenting decisions generally, the court considers only the best interests of the child and gives primary consideration to the child's physical, emotional and psychological safety, security and well-being. Spouses are also expected to protect any child of the marriage from conflict arising from the proceeding. A heated move-out can work against that goal, so how you handle the transition matters.

Asking for a temporary order

Because a divorce can take a long time, people often need an answer about the home early. Parties commonly ask for temporary orders on matters such as child or spousal support, parenting schedules, travel with a child, or who lives in the family home. A judge may make a temporary order at the end of a motion, and it stays in place while the case continues.

Generally, a party must attend a case conference before bringing a motion for a temporary order. There are exceptions for urgency, such as an immediate safety risk, and for hardship, such as needing a support order for basic living conditions. If a judge finds you brought the motion before a conference when that was not necessary, you may be ordered to pay the other party's costs for the motion.

Rule 14 of the Family Law Rules governs temporary orders. Procedural, uncomplicated or unopposed motions use Form 14B instead. Because deadlines are tight, many people get help with the paperwork.

When safety is the concern

If you fear for your safety, the process looks different. A restraining order is available in family court if the people were married or lived together for any period, or have a child together. Urgent motions without notice use Form 14 and Form 14A where the other person's whereabouts are unknown, there is immediate danger of harm or removal of children from Ontario, or notice could have serious consequences, and the other person is served afterward.

A restraining order can be general, meaning stay away, or specific, such as no contact at the home, workplace or children's school. It must be served on the spouse as soon as possible, and someone else can serve it. Keep a copy and call police if it is breached.

If you are planning to leave, the province lists steps such as opening a bank account in your own name, saving money, gathering identification and documents, and packing an emergency bag. Contacts include 911, the Assaulted Women's Helpline, the Victim Support Line, 211 and Family Court Support Workers.

Protecting your position on title

If your spouse owns the home alone, you may worry that it could be sold or mortgaged. How to protect your position on title depends on your situation, so it is worth confirming with a lawyer.

What to do next

• Write down who owns the home, who is on the mortgage, and who lives there now.
• Note any safety concerns or incidents with dates, and keep any records.
• Think about where each of you could realistically live, and what the children need.
• Gather income and expense information, since finances are part of the decision.
• If safety is at risk, use the contacts listed above and get legal advice right away.
• Talk to a family lawyer before moving out or asking your spouse to leave, so you understand how it could affect your position.

Frequently asked questions