Should You Move Out of the Family Home When You Separate in Ontario?

Separation often raises one urgent question: who stays in the house? Tension at home can make leaving feel like the only option, but moving out can have effects on your rights, your children and your finances that are hard to undo.

This guide explains how Ontario law treats the family home for married spouses, what a court can order, and what to think about before you pack. It is general information, not advice for your situation, and a lawyer can confirm how it applies to you.

What the law means by the matrimonial 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.

Both spouses have an equal right to possession of the matrimonial home, whoever holds title. Without a court order, a non-owning married spouse cannot be put out of the home simply because the other spouse owns it.

There is one important limit. Where only one spouse has an interest in the 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. In practice, that means a non-owning spouse should not assume they can stay after the divorce.

Selling, mortgaging and sharing its value

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 by separation agreement
• a court order authorizes it
• another property is validly designated and registered as the matrimonial home

These consent rules apply to both spouses, so neither of you can sell or borrow against the home alone unless one of these exceptions applies. How moving out affects your other rights in the home depends on your situation, so it is worth confirming with a lawyer.

The home also matters when property is divided. 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. This is different from most gifts and inheritances, which are normally excluded from net family property, but that exclusion does not apply to a matrimonial home.

Who pays the mortgage, utilities and repairs after one spouse leaves is a separate question. Mortgage terms are set by your lender and your contract, so check your mortgage documents and ask a lawyer before you stop paying anything.

How leaving can affect your children

If you have children, the move can matter as much as the house. A child's parents are equally entitled to decision-making responsibility for the child. But if the 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 right to exercise decision-making responsibility is suspended until a separation agreement or order provides otherwise. Parenting time is not suspended.

Courts deciding parenting cases must give primary consideration to the child's physical, emotional and psychological safety, security and well-being, and one factor they weigh is the history of care of the child. Moving out and leaving the children's day-to-day care with the other parent can become part of that history. A 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.

Asking a court for exclusive possession or protection

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. It may also order periodic payments, deal with the contents, and order payment of repairs and maintenance. A court can make a temporary order on a motion. Ontario also says a married person can ask for exclusive possession even if the home is in the spouse's name.

In deciding, the court must consider:

• the best interests of the children affected
• existing property and support orders
• both spouses' financial positions
• any written agreement
• whether other suitable and affordable accommodation is available
• any violence by a spouse against the other spouse or the children

On the children's side, the court considers the possible disruptive effects on a child of moving, and the child's views and preferences if they can reasonably be ascertained.

If you are in danger, call 911 or local police immediately. A person abused by a spouse or partner can also ask the court for a restraining order, which can require the person to stay away generally or from places such as the home, workplace or children's school.

If you are not married, and what to do next

These possession rules in Part II of the Family Law Act apply to spouses as defined in s. 1(1), meaning married people. If you are unmarried, Ontario's guidance is to contact a lawyer about your rights and options regarding the home. Common-law partners are generally not required to split property acquired while living together, and items usually belong to whoever bought them. Your rights to a shared home may depend on title or the lease, so get advice early.

Before deciding to stay or leave, work through this list:

• Confirm whether you are legally married and whose names are on title, the mortgage or the lease.
• If there is any risk to your safety or your children's, make a safety plan and call 911 in an emergency.
• Photograph and list the home's contents and gather financial records.
• Write down who cares for the children day to day, and propose a parenting schedule in writing.
• Do not sell, mortgage or transfer the home unless the other spouse consents or has released their rights by separation agreement, a court order authorizes it, or another property is validly designated and registered as the matrimonial home.
• Speak to a family lawyer before you move out, not after.

Ontario's Family Law Information Centres are free services across Ontario that give information about separation, divorce and related family law issues. They are a useful starting point, and a lawyer can explain how the rules apply to your facts.

Frequently asked questions