Who Keeps the Family Home When Common-Law Partners Split in Ontario?

A breakup is hard enough without wondering where you will sleep next week. If you are unmarried and your relationship has ended, you may be asking whether you can stay, whether you can be made to leave, and whether it matters whose name is on the title or the lease.

In Ontario, the rules for unmarried partners are quite different from the rules for married spouses. This article explains the difference in plain terms so you know what questions to raise.

Ownership and occupation are different questions

Ownership is about who holds legal title, or who is on the lease. Occupation is about who is actually allowed to live there right now. For married spouses, the law links the two in a special way. For unmarried partners, it generally does not.

Unmarried partners are not legally required to split property acquired while they lived together, and property generally belongs to the person who bought it. Ontario's guidance on the family home discusses it only for married spouses, and common-law partners have no statutory right to share or stay in a home owned by the other partner.

How married spouses are treated

The matrimonial home rules apply to people who are married, because Part II uses the married-only definition of spouse. Married spouses have an equal right to possession of the matrimonial home.

Regardless of ownership, a court may give one married spouse exclusive possession of all or part of it. The court looks at the children's best interests, existing orders, each spouse's finances, any written agreement, whether other suitable and affordable housing is available, and any violence against a spouse or child.

Those possession rights do not cover unmarried partners.

If you are on title, or only on the lease

• If you own the home: you have no statutory duty to let your former partner stay, because common-law partners have no statutory right to stay in a home owned by the other partner. A former partner may still have other claims, discussed below.
• If your partner owns the home and you are not on title: you do not have the possession rights married spouses have. Even so, a partner who contributed to property the other owns may have a right to part of it. How the law applies can depend on the circumstances and any agreement between you.
• If you are only on the lease: your rights depend on the lease and on tenancy law, and on whether your partner is also a tenant. This depends on the facts, so it is worth getting advice quickly.

If you have a written agreement about the home, it matters. A domestic contract that deals with a matter also covered by the Family Law Act prevails unless the Act provides otherwise.

Safety comes first

If you fear for your own or a child's safety, a court may make a restraining order where you have reasonable grounds for that fear. It can be made against a person who is or was cohabiting with you for any period of time, so it is not limited to married spouses. The wording of this provision may be updated in future, so a lawyer can confirm the current version.

If you are in immediate danger, contact emergency services right away. What other protection is available to you depends on your situation, so it is worth confirming with a lawyer.

Other claims that connect to the home

A partner who contributed to property the other owns may have a right to part of it. If the owner will not agree to repay, the partner may have to go to court. Most other civil claims fall under the basic two-year limitation period, which runs from the day the claim was discovered. Which period applies to a specific claim depends on the facts.

Child support does not depend on marriage. Spousal support may be available if you have cohabited continuously for at least three years, or are in a relationship of some permanence and are the parents of a child. There is no limitation period for a proceeding to obtain support under the Family Law Act.

What to do next

• Gather the title, mortgage, lease, and any written agreement about the home.
• Keep records of payments you made toward the mortgage, rent, repairs or improvements.
• Do not sign anything or move out in a rush without understanding your position.
• Note the date of separation and any date you discovered a claim, because time limits can apply.
• Speak with a family lawyer, and about your lease if you rent, before making decisions.

Frequently asked questions