How to Get an Exclusive Possession Order in Ontario Court

If your relationship has broken down and living together is no longer workable, you may want the other spouse to leave the home. In Ontario, you generally cannot make that happen on your own. It takes agreement or a court order.

This article explains what exclusive possession is, what the court considers, how an application generally proceeds, and the kind of evidence that tends to matter. It is general information, and your facts will shape the outcome.

What exclusive possession means

Both spouses have an equal right to possession of a matrimonial home, whoever holds title, and moving out does not end that statutory right. A matrimonial home is a property in which a person has an interest and that is, or was at separation, ordinarily occupied by the person and their spouse as their family residence.

Regardless of who owns the home and its contents, the court may order that one spouse have exclusive possession. It may also make orders about preserving the home, periodic payments and the cost of repair or maintenance.

These rules are for spouses. When only one spouse owns the home, the other spouse's right of possession ends when they stop being spouses, for example on divorce, unless a separation agreement or court order provides otherwise.

What the court looks at

The Family Law Act lists the factors the court considers when deciding on exclusive possession:

• 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; and
• any violence committed by a spouse against the other spouse or the children.

The court looks at the whole picture, so the strength of your case depends on how your facts fit these factors.

Where and how the application proceeds

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

If you need relief quickly, temporary or interim orders are available on motion. Many people ask for an interim order first, to stabilize the living situation while the rest of the separation is sorted out.

If you make a property claim in court, you also have disclosure duties, including serving and filing a financial statement in Form 13.1. A lawyer can tell you which forms apply to your application and how to file them.

Evidence that tends to matter

Because the court looks at the listed factors, your evidence should speak to them. Think about what you can show, in documents and in your own sworn account, on each point.

• Who lives in the home, and the children's routines, schooling and care arrangements.
• Income, expenses, support payments and any existing court orders.
• Any written agreement between you and your spouse about the home.
• Rental listings, costs and other housing options for each of you, and why they are or are not suitable and affordable.
• Records of any violence or threats, such as police reports, medical records, messages and photos.
• Proof of who pays the mortgage, taxes and repairs.

If safety is a concern, tell your lawyer or the court right away and consider getting help from local support services.

How long an order lasts and what to do next

The court can make a temporary or interim order on a motion about exclusive possession of the matrimonial home. How long an order in your case would last depends on its wording and your situation, so it is worth confirming with a lawyer. Separately, 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.

• Gather the evidence listed above.
• Speak to a family lawyer about whether to ask for an interim order.
• Remember that a sale or mortgage of the home generally needs your spouse's consent or a court's authorization.

Frequently asked questions