Exclusive Possession of a Rented Home on Separation in Ontario

When you rent your home and your relationship ends, the first question is usually practical: who stays, and can anyone make the other person leave? Many people assume the matrimonial home rules only matter when a house is owned. That is not a safe assumption, and the answer for a lease depends on the details.

This article explains how Ontario's Family Law Act describes a matrimonial home, what a court can do about possession, and where the rules stop for unmarried partners. It is general information, and a lawyer can confirm how it applies to your lease.

What counts as a matrimonial home

A matrimonial home is any property in which a person has an interest and that is, or was at separation, ordinarily occupied by that person and their spouse as their family residence. The definition looks at how the couple actually lived, not only at who holds title.

A couple can have more than one matrimonial home, such as a house and a cottage that were both used as family residences. A rental property the couple did not live in as a family residence does not qualify. Whether a particular lease gives a person the kind of interest the definition requires depends on the lease and the facts, so it is worth confirming with a lawyer.

Equal right to possession, even if you leave

Both spouses have an equal right to possession of a matrimonial home, whoever holds title.

Moving out does not end this statutory right. There is an exception, though: when only one spouse has an interest in the home, the other spouse's right of possession is personal against the owner spouse and ends when they stop being spouses, for example on divorce, unless a separation agreement or court order provides otherwise. That can matter if a lease is in only one person's name. The practical effects of leaving, including how it affects the children's routines or a later request for exclusive possession, depend on the facts. Think carefully, and ideally get advice, before you move out.

When a court can order exclusive possession

Regardless of who owns the matrimonial home and its contents, a court may order that one spouse have exclusive possession. It may also make orders about preservation, periodic payments and the costs of repair or maintenance. Interim or temporary orders are available on a motion.

Matrimonial home applications of this kind are heard by the Superior Court of Justice, including its Family Court branch where it sits. The Ontario Court of Justice is excluded.

In deciding, the court considers these factors:

• the best interests of the children
• existing orders and support obligations
• the financial position of both spouses
• any written agreement between the parties
• whether other suitable and affordable housing is available
• any violence committed by a spouse against the other spouse or the children

Unmarried partners and agreements

The matrimonial home rules are for spouses who are married. Unmarried partners have no statutory matrimonial-home right. The wider definition of spouse for unmarried couples appears in the support part of the Act, and it does not give them equalization of net family property. If you are unmarried and rent together, your position turns on the lease and on any agreement between you.

Married spouses can also settle possession by agreement. A separation agreement can deal with ownership and division of property. For an agreement to be enforceable it must be in writing, signed and witnessed. A provision in a marriage contract that tries to limit a spouse's matrimonial home rights, such as possession, is unenforceable.

What to do next

Possession problems can move quickly, so organize your information early. A lawyer can tell you how the rules apply to your particular lease and whether an urgent motion makes sense.

• Gather the lease, any renewals and notices, and proof of who has been paying rent.
• Write down who lives in the home, including the children, and since when.
• Note any safety concerns, because violence is a listed factor.
• Keep any written agreement between you and your spouse.
• Look at what other housing is available and affordable for each of you.
• Speak with a lawyer before moving out or changing the locks.

Frequently asked questions