Can You Make Your Spouse Leave the Family Home in Manitoba?

Few parts of a separation feel as urgent as the question of who stays in the house. You may want your spouse out, or you may be the one worried about being pushed out. Either way, the answer depends on your situation, and it is not as simple as who owns the home or whose name is on the title.

This article explains what Manitoba law says about separation, homestead rights and property, and when a protection order may apply. It also points out where the answer depends on facts a lawyer should look at.

This article covers the law of Manitoba.

Separating does not decide who has to leave

Manitoba government guidance says you do not need a court order or a formal separation agreement to separate. Spouses can simply live separate and apart, and they remain legally married until a divorce.

The same guidance recommends, but does not require, a written separation agreement, family arbitration award or court order when there are children or issues about property or financial support.

Whether a court can order one person out of the home outside a protection order depends on the facts, and a lawyer can confirm your options.

Homestead rights: protection for the spouse who is not on title

The Homesteads Act applies to all married persons and persons in common-law relationships, and the rights exist whether or not the non-owner is on title. A homestead includes a city, town or village residence occupied by the owner and the owner's spouse or common-law partner as their home. Rural residences and condominium units are covered under separate clauses.

In practical terms, homestead rights mean the following:

• An owner may not dispose of the homestead during the owner's lifetime unless the spouse or common-law partner consents in writing in the prescribed form.
• That consent is registered in the land titles office.
• A spouse may release homestead rights in writing in the prescribed form for valuable consideration, after which the land ceases to be that spouse's homestead.
• A spouse or common-law partner with homestead rights may register a homestead notice in the land titles office, and registration of a disposition is blocked until the notice is vacated or discharged.

These rules limit selling or otherwise disposing of the home. They are not described as a right to stay in the home against the owner's wishes, so do not assume they decide who lives there after separation.

The home and dividing property

Under The Family Property Act, the family home is a family asset, meaning an asset owned by one or both spouses or common-law partners and used for shelter, transportation, or household, educational, recreational, social or aesthetic purposes. Each spouse and common-law partner has the right, on application, to an accounting and, subject to s. 14, an equalization of assets. The combined value is divided into two equal shares unless s. 14 orders otherwise.

For family assets, a court may change equal sharing only if equalization would be grossly unfair or unconscionable. Conduct is disregarded in dividing property unless it amounts to dissipation.

Time limits matter here. An application generally may not be made more than 60 days after the divorce becomes absolute or takes effect, although the court may extend the time in specified circumstances. For common-law partners, the limit is 60 days from registration of the dissolution if registered, or three years from when they began to live separate and apart if unregistered.

When a protection order may apply

If the issue is safety, a different law may apply. The Domestic Violence and Stalking Act covers people who cohabit or have cohabited in a spousal, conjugal or intimate relationship, have a family relationship, have or had a dating relationship, or are parents of the same child.

A protection order may include no-contact terms, removal of the respondent from the residence, temporary possession of personal effects and firearm surrender. To get one, the following must be shown:

• The respondent is committing or has committed domestic violence or stalking against the subject.
• The subject believes it will continue or resume.
• The subject needs protection because that is reasonably likely.
• Because of seriousness or urgency, the order should be made without delay.

The justice must also consider risk factors such as history of abuse, escalation, coercive control and access to firearms. An application can be made without notice to a designated justice of the peace. The subject may apply in person, and a lawyer, peace officer or person designated by the minister may apply with the subject's consent.

A protection order expires three years after it is granted unless the justice sets a longer period needed for protection. Once filed in court it is an order of the court. The respondent may apply to set it aside within 20 days of service, and that application does not stop the order from applying.

What to do next

If you are in immediate danger, contact police or emergency services first. Otherwise, a calm, documented approach usually serves you best.

• Find out whether the home is owned, rented or a condominium, and who is on title.
• Gather documents: title or lease, mortgage statements, recent financial records and any existing agreements.
• Do not sell, transfer or mortgage the home, and do not try to remove your spouse yourself, without legal advice.
• Consider whether a written separation agreement or court order is appropriate, especially if there are children.
• If you sign an agreement, get independent legal advice, because it is a binding contract.
• Note the time limits for property claims and ask a lawyer how they apply to you.
• If safety is a concern, ask about a protection order and keep a record of incidents.

A lawyer can look at your facts, explain whether a court order about living in the home is available, and help you plan the steps.

Frequently asked questions