Who Keeps the House After Separation in Ontario?

The family home is usually the biggest asset and the most emotional one. After separation, people often ask whether the spouse whose name is on the title can simply ask the other to leave, or who gets to stay with the children.

The answers in Ontario depend on whether you are married, what the court is asked to decide, and whether safety is a concern. This article gives the general picture.

Married spouses have equal rights to the 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 it, whoever holds title.

In practice, without a court order, a non-owning married spouse cannot be put out of the home simply because the other spouse owns it. Changing the locks or asking someone to leave is therefore risky without advice.

There is an exception. 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.

Possession is different from value

Who lives in the home is a separate question from how its value is shared. For the family home, the full value 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. Unlike other gifts and inheritances, the exclusion for such property does not apply to a matrimonial home.

If one spouse wants to keep the house, the usual approach is to value it, account for it in the equalization calculation, and work out how that spouse will pay out the other. Whether a lender will agree to a new or changed mortgage is up to the lender and your mortgage contract.

Selling or mortgaging the home

No 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.

If you want to refinance, take out a home equity loan or remove a name from the mortgage, expect the lender to have its own requirements. Ask the lender and a lawyer before you sign.

Asking a court for exclusive possession

If you are married, whoever owns the home, a court may order that one spouse be given exclusive possession of it, 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. These matrimonial home rules apply to married spouses, as explained in the section on unmarried partners below. A court can make a temporary or interim order on a motion.

In deciding, the court must consider these things:

• 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.

For children's best interests, the court considers the possible disruptive effects 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 the children's school.

If you are not married

The matrimonial home possession rights in Part II of the Family Law Act apply to spouses as defined in s. 1(1), meaning married people. Ontario's guidance tells people who are not married to contact a lawyer about their rights and options regarding the home.

Common-law couples are not legally required to split property acquired while living together, and items generally belong to whoever bought them. A partner who contributed to the other's property may need to go to court to recover that contribution.

What to do next

• Gather the title or deed, mortgage statements and the lease if you rent.
• Do not sell, mortgage or change the locks without legal advice.
• Write down who lives in the home and who cares for the children day to day.
• If safety is a concern, make a safety plan and call 911 in an emergency.
• Talk to a lawyer about whether to negotiate, sign a separation agreement, or ask the court for an order.

Family Law Information Centres give free information about separation and related issues across Ontario.

Frequently asked questions