Can I Be Removed From the Matrimonial Home in Ontario?

If your spouse owns the home, or says it is theirs, you may fear being told to leave or finding the locks changed. The law gives married spouses protection here, but it also allows limits in some situations.

This article explains your right to possession, how a court can change it, and what protects you if your spouse tries to sell or mortgage the home.

Your equal right to possession

Under the Family Law Act, both spouses have an equal right to possession of a matrimonial home, whether or not their name is on title. A matrimonial home is any property in which a spouse has an interest and that is or was ordinarily occupied by the spouses as their family residence, judged at the time of separation if they have separated.

If only one spouse has an interest in the home, the other spouse's right of possession is personal as against the owning spouse. It ends when they stop being spouses, unless a separation agreement or court order says otherwise. A marriage contract term that tries to limit a spouse's matrimonial home rights is unenforceable.

These rights belong to spouses as the Act defines them. They do not extend to unmarried cohabitants. If you are common-law, get advice promptly about your position.

When a court can limit that right

A court may order that one spouse be given exclusive possession of the matrimonial home. It may also order a spouse to pay for repairs and maintenance. The court may make an order giving one spouse exclusive possession, and how that works for you depends on your situation. Whether your spouse can change the locks on their own depends on your situation, so it is worth confirming with a lawyer before you act.

When deciding, the court considers factors that include the best interests of the children, the availability of other suitable and affordable housing, and any violence by a spouse against the other spouse or the children. If you are unsafe, your safety comes first, and a lawyer or local support service can help you plan.

Protection if the home is sold or mortgaged

A spouse may not sell or mortgage an interest in a matrimonial home unless one of the following applies:

• the other spouse joins in or consents;
• the other spouse released their rights in a separation agreement;
• a court order authorizes it; or
• a different property was designated as the matrimonial home by both spouses and that designation is registered.

A court can set aside a sale or mortgage made in breach of these rules, but not if the buyer or lender acquired the interest for value, in good faith and without notice that the property was a matrimonial home. The court may also authorize a sale or mortgage where the other spouse cannot be found, cannot consent or unreasonably refuses to consent.

Designation can also matter. One or both spouses may designate a property as a matrimonial home and register it. A designation registered by only one spouse does not release other properties that qualify as matrimonial homes.

Ownership, mortgages and money

Possession is different from ownership. A person can apply to court to decide a question of ownership or possession of particular property between them and their spouse. Equalization of property value is a separate process.

If you both signed the mortgage, each joint borrower is equally responsible for repaying the unpaid balance, and separation does not change that contract with the lender. Leaving the home does not remove you from the mortgage.

What to do next

• Do not move out without advice if you can safely stay, because a move can affect the practical arrangements.
• If you are locked out or threatened, contact a lawyer or support service right away.
• Collect proof of how long the home was your family residence and who lived there.
• Check whether any sale or mortgage is being arranged and whether you have been asked to sign anything.
• Keep any separation agreement or court order, since it may change who can stay.

Frequently asked questions