Can I Stay in the House During Separation in Ontario?

Separation often raises an urgent question: who stays in the house? Many people feel pressure to leave quickly, or worry that staying will make things worse. The rules in Ontario are more balanced than most people expect.

This article explains how the law treats the family home when a married couple separates, what moving out does and does not change, and how a court can decide who lives there. Your facts matter a great deal, so treat this as general information.

You do not lose your right to the home by being a spouse who is not on title

Both spouses have an equal right to possession of a matrimonial home, no matter whose name is on the title. If you are married, that is true even if your spouse bought the house alone.

There is an exception. When only one spouse has an interest in the home, the other spouse's right of possession is personal against the owner spouse. It ends when they stop being spouses, for example on divorce, unless a separation agreement or court order provides otherwise.

What counts as a matrimonial home

A matrimonial home is any property in which a person has an interest and that is, or was at separation, ordinarily occupied by the person and their spouse as their family residence. A couple can have more than one, such as a house and a cottage both used as family residences. A rental property the couple did not live in as a family residence does not qualify.

• A condo or co-op unit can qualify, because shares that entitle you to occupy a unit are treated as an interest in it.
• On a farm or other mixed-use property, only the part reasonably needed for the use and enjoyment of the residence is the matrimonial home.
• Spouses can designate a property as a matrimonial home in the prescribed form, and the designation may be registered in the land registry office.

What happens if you move out

Moving out does not end your statutory right to possession of the matrimonial home. The practical effects of leaving, such as how it may affect parenting arrangements or a later request for exclusive possession, depend on the facts, so it is worth getting advice before you go.

Whether you stay or leave, your spouse generally cannot sell or mortgage the home on their own. No spouse may dispose of or encumber an interest in a matrimonial home unless the other spouse joins in or consents, has released their rights by separation agreement, a court authorizes it, or another property has been properly designated as the matrimonial home. A buyer or lender who acted for value, in good faith and without notice that it was a matrimonial home may be protected.

When a court can give one spouse exclusive possession

If you cannot agree on who stays, the court may order that one spouse have exclusive possession of the matrimonial home, regardless of who owns it or its contents. It can also make orders about preservation, periodic payments and repair or maintenance costs, and temporary orders are available on a motion. These matters are heard by the Superior Court of Justice, not the Ontario Court of Justice.

The court looks at these factors:

• the best interests of the children
• existing orders and support obligations
• the financial position of both spouses
• any written agreement between the parties
• whether other suitable and affordable housing is available
• any violence committed by a spouse against the other spouse or the children

What to do next

• Do not sell, mortgage or move out of the home without understanding your rights first.
• Gather title documents, mortgage statements and any marriage contract or agreement.
• Write down who lives in the home, including the children, and any safety concerns.
• Try for a written agreement on who stays and who pays the costs; a separation agreement must be in writing, signed and witnessed.
• Speak to a family lawyer promptly if you need an urgent or temporary order.

If you are in immediate danger, contact police or emergency services first.

Frequently asked questions