- As a married spouse, you have an equal right to possess the matrimonial home whoever holds title, but if only your spouse has an interest in it, your right ends when you stop being spouses unless a separation agreement or court order provides otherwise.
- The spouse who stays cannot sell or mortgage the home without your consent or a court order, with limited exceptions.
- If you have children, leaving their day-to-day care with the other parent can become part of the care history a court weighs.
Separation often raises an urgent question: should one of you leave the house? Many people worry that walking out will cost them the home, their share of its value, or time with their children.
This article explains how Ontario law generally treats the family home for married spouses, what changes if you have children, and where the rules work differently. Your facts matter, so a lawyer can confirm how this applies to you.
Moving out does not cancel your rights to the home
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. If you both lived there as your family home when you separated, it stays a matrimonial home even if one of you later leaves.
Both spouses have an equal right to possession of a matrimonial home, whoever holds title. Without a court order, a married spouse who does not own the home cannot be put out simply because the other spouse owns it.
Selling, mortgaging and protecting the property
The spouse who stays cannot sell, otherwise dispose of, or mortgage an interest in the matrimonial home unless one of these applies:
- the other spouse joins in or consents
- the other spouse has released their rights by separation agreement
- a court order authorizes it
- another property is validly designated and registered as the matrimonial home
If needed to protect your property interests, a court may make an interim or final preservation order restraining the depletion of property and providing for its possession, safekeeping and preservation.
The full value of the family home must be shared even if one spouse owned it before the marriage or received it as a gift or inheritance, unless the spouses agree otherwise.
If you have children
Parents are equally entitled to decision-making responsibility for a child. But if parents live separate and apart and the child lives with one parent with the other's consent, implied consent or acquiescence, the other parent's decision-making right is suspended until a separation agreement or order provides otherwise. Parenting time is not suspended.
In parenting cases, the court gives primary consideration to the child's physical, emotional and psychological safety, security and well-being, and weighs factors including the history of care of the child. Moving out and leaving day-to-day care with the other parent can therefore become part of that history. The court must also give effect to the principle that a child should have as much time with each parent as is consistent with the child's best interests.
Exceptions and special situations
| Situation | What generally happens |
|---|---|
| Non-owning spouse after divorce | Where only one spouse has an interest in the home, the other's right of possession is personal and ends when they stop being spouses unless a separation agreement or court order provides otherwise. |
| Request for exclusive possession | Regardless of ownership, a court may order that one spouse have exclusive possession of the home or part of it for a period the court directs. An interim order can be sought on a motion. |
| Unmarried partners | The matrimonial home possession rights in Part II of the Family Law Act apply to married people, so common-law partners should speak to a lawyer about their rights and options. |
| Safety concerns | A person in danger should call 911 or local police immediately. A person abused by a spouse or partner can ask the court for a restraining order, which can require the person to stay away from places such as the home, workplace or children's school. |
When deciding on exclusive possession, the court must consider the best interests of affected children, existing property and support orders, both spouses' financial positions, any written agreement, whether other suitable and affordable accommodation is available, and any violence by a spouse against the other spouse or the children. For children, the court considers the possible disruptive effects of moving and the child's views and preferences if they can reasonably be ascertained.
What to do next
- Before moving out, get advice on your situation, especially if you have children or safety concerns.
- Do not sell or mortgage the home without the other spouse's consent or a court order.
- Keep records of who cares for the children day to day.
- Put your arrangements in writing. A separation agreement is unenforceable unless it is in writing, signed by the parties and witnessed.
- Contact a Family Law Information Centre. These free services give information about separation and divorce, with duty counsel provided by Legal Aid Ontario.
If you are unmarried, or your home is rented or has unusual ownership, the answers can differ, so confirm the details with a lawyer.
Frequently asked questions
If I move out, can my spouse change the locks or sell the house?
Without a court order, a non-owning married spouse cannot be put out simply because the other spouse owns the home. The spouse who stays also cannot sell or mortgage it without your consent or a court order, unless an exception applies.
Will I lose my share of the home's value if I leave?
The facts I have do not address moving out, so this depends on your situation. What they do say is that the family home's full value is shared even if one spouse owned it before the marriage or inherited it, unless the spouses agree otherwise, and that net family property is worked out at the valuation date after deducting debts such as the remaining mortgage. A court may also award more or less than half the difference if equalizing would be unconscionable.
Does moving out affect my time with the children?
Parenting time is not suspended when you move out. However, leaving day-to-day care with the other parent can become part of the care history a court weighs, and if the children live with the other parent with your consent, implied consent or acquiescence, your decision-making right is suspended until an agreement or order says otherwise.
What if I do not feel safe at home?
A person in danger should call 911 or local police immediately. If a spouse or partner has abused you, you can ask the court for a restraining order, and a married spouse can ask for exclusive possession of the family home even if the home is in the other spouse's name.
Sources
- Family Law Act, R.S.O. 1990, c. F.3 (e-Laws) — Ontario e-Laws
- Ontario.ca – Violence in the family — ontario.ca
- Ontario.ca – Dividing property when a marriage or common law relationship ends — ontario.ca
- Ontario.ca – Family Law Information Centres — ontario.ca
- Children's Law Reform Act, R.S.O. 1990, c. C.12 (e-Laws) — Ontario e-Laws
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