Renting After Separation in Ontario: Who Is Responsible for the Lease?

When a couple separates, one of the first questions is who stays in the rental home and who pays the rent. The answer is not always as simple as who moves out.

This article explains in general terms how a lease interacts with family law in Ontario, what options may exist for married and unmarried partners, and how to plan safely. Tenancy rules and the exact wording of your lease are outside what this article covers, so confirm those with a lawyer.

A lease is a contract with your landlord

Your lease is an agreement between the tenants and the landlord. A separation between you and your partner does not by itself tell you what the landlord can expect. Whether someone who moves out stays responsible for rent depends on the lease and on Ontario's tenancy rules, so it is worth getting advice before you hand back keys or stop paying.

How a lease applies to you depends on whose names are on it and on the terms you signed. If you are married, you can ask the court for exclusive possession of the family home, even if the home is in the other spouse's name. Because your situation may differ, it is worth confirming with a lawyer before assuming that you are free of the lease or that you can keep the home.

If you are married

A married person can ask the court for exclusive possession of the family home, even if the home is in the other spouse's name. When deciding an application for exclusive possession of the matrimonial home, a court must consider any violence committed by a spouse against the other spouse or the children. Whether a rented home is treated the same way as an owned one depends on the facts, so a lawyer can confirm.

If you are married, you can also separate without divorcing. Divorce is not required after separating, and provincial law, in Ontario the Family Law Act and the Children's Law Reform Act, deals with support and parenting.

If you are not married

Common-law couples have no legal duty to split property acquired while living together, and property generally belongs to the partner who bought it. A partner who contributed to the other's property may have to go to court to recover that contribution, and partners can set their own property rights in a cohabitation agreement.

Marriage contracts and cohabitation agreements can deal with property, support and where people live, but they cannot decide parenting or decision-making for children. Both parties must sign in front of a witness, who must also sign.

Agreements, support and housing costs

Many separated people reach a written plan about who stays, who pays what and how the move will happen. A written agreement on child support, parenting arrangements or spousal support must be signed by both parents or caregivers in front of a witness, and a lawyer or a mediator can help prepare it.

Housing costs often depend on support. Married spouses can claim spousal support, as can partners who lived together as a couple for at least three years, and partners in a relationship of some permanence, for any length of time, who had a child together. The Spousal Support Advisory Guidelines are only guidelines, though lawyers and judges often use them to set the amount and length of support.

To have support terms enforced by the Family Responsibility Office, a domestic contract must be filed with the Ontario Court of Justice or the Superior Court of Justice and then registered with the Family Responsibility Office.

Safety and next steps

If you are in danger at home, call 911 or local police immediately, make a safety plan, and if you have children, try to take them with you when you leave. Do not stay in an unsafe home only because of the lease.

• Find your lease and any renewals, and note whose names are on it.
• Read the notice and end-of-term terms, and ask a lawyer how they apply to your situation.
• Keep paying rent and communicating with the landlord in writing until you have advice.
• Do not give up the unit or sign anything with the landlord without understanding the effect on you.
• Write down any agreement with your partner about who pays rent and who stays.
• If safety is a concern, ask about restraining orders, which you can apply for if you were married to or lived with the person for any period of time, or have a child with them.

The Law Society Referral Service offers an initial consultation of up to 30 minutes at no charge, and Legal Aid Ontario may provide help.

Frequently asked questions