Can You Make Your Spouse Move Out After Separation in Ontario?

Separation is stressful enough without wondering who has to leave the house. Many people assume the spouse whose name is on the title can simply tell the other to go. Others assume the opposite. The law is more balanced than either assumption.

This article explains the starting rule for married spouses, when a court can give one spouse the home to the exclusion of the other, and what the court looks at. It does not cover how the home is valued or divided, which is a separate question.

The starting point: equal rights to the home

Both spouses have an equal right to possession of a matrimonial home, whoever holds title. That means that, without a court order, a married spouse who does not own the home cannot be put out of it simply because the other spouse owns it.

A matrimonial home is every property in which a spouse has an interest and that is, or was at the time of separation, ordinarily occupied by the spouses as their family residence. It can be a house, a condo or another property you lived in as a family. A cottage used only on weekends may raise different questions, so it is worth getting advice if you have more than one property.

In practice, this means changing the locks, removing your spouse's belongings or demanding that they leave is risky. If you want the home to yourself, the proper route is an agreement or a court order.

When a court can order exclusive possession

Regardless of who owns the matrimonial home, a court may order that one spouse be given exclusive possession of the home, or part of it, for a period the court directs. The court may also order periodic payments, deal with the contents of the home, and order payment of repairs and maintenance.

You do not have to wait for the final result of your case. A court may make a temporary or interim order for exclusive possession and related relief on a motion. This matters when tension at home is high and waiting months is not realistic.

What the court must consider

In deciding whether to order exclusive possession, the court must consider these things:

• The best interests of the children affected.
• Any existing property and support orders.
• Both spouses' financial positions.
• Any written agreement between the spouses.
• Whether other suitable and affordable accommodation is available.
• Any violence by a spouse against the other spouse or the children.

When the court weighs a child's best interests, it looks at the possible disruptive effects on the child of moving, and at the child's views and preferences if they can reasonably be ascertained.

How these factors apply depends on your situation, so it is worth confirming with a lawyer. A spouse who has somewhere affordable to go and no children at home faces a different situation from a parent whose children would have to change schools.

Selling, mortgaging and what happens after divorce

Neither spouse may sell, otherwise dispose of, or mortgage an interest in a matrimonial home unless one of the following applies:

• The other spouse joins in or consents.
• The other spouse has released their rights in a separation agreement.
• A court order authorizes it.
• Another property is validly designated and registered as the matrimonial home.

Timing matters too. Where only one spouse has an interest in the matrimonial home, the other spouse's right of possession is personal as against the owning spouse, and it ends when they stop being spouses, unless a separation agreement or court order provides otherwise. So a non-owning spouse who is still in the home should not assume the right continues indefinitely once a divorce is final.

Safety comes first

If you or your children are in danger, call 911 or local police immediately. Ontario also says a married person can ask the court for exclusive possession of the family home even if the home is in the spouse's name.

A person abused by a spouse or partner can also ask the court for a restraining order. The order can require the person to stay away generally, or from specific places such as the home, workplace or the children's school. Violence is one of the factors a court must weigh when deciding on exclusive possession.

Unmarried partners and next steps

The matrimonial home possession rights in Part II of the Family Law Act apply to married people. Ontario's guidance tells people who are not married to contact a lawyer about their rights and options regarding the home. For common-law partners, much depends on who is on the title or the lease and on other legal claims, so see our article on common-law partners and the family home.

• Do not change locks or remove your spouse or their belongings without legal advice.
• Gather the title or lease, mortgage statements and any written agreements.
• Note where the children live and go to school, and what housing is realistically available to each of you.
• Keep a record of any incidents of violence or threats, and call 911 if you are in danger.
• Speak with a family lawyer before asking for, or responding to, an exclusive possession motion.

Frequently asked questions