Who Stays in the Family Home After Separation in Ontario?

Separation raises an urgent question: who sleeps in the house tomorrow? Many people assume the name on the title decides it. In Ontario, for married spouses, it usually does not.

This guide explains what counts as a matrimonial home, what each spouse can and cannot do, and how a court decides who stays. It does not cover mortgage refinancing or how the home's value is divided.

What counts as the matrimonial 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. A couple can have more than one, such as a house and a cottage, if both were ordinarily lived in as a family residence.

Your rights while you are still married

Both spouses have an equal right to possession of a matrimonial home, whoever holds title. Without a court order, a married spouse who does not own the home cannot be put out simply because the other spouse owns it.

There is an exception once the marriage ends. Where only one spouse has an interest in the home, the other spouse's right of possession is personal against the owner, and it ends when they stop being spouses unless a separation agreement or court order provides otherwise.

Neither spouse may 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 has released their rights by separation agreement
• a court order authorizes it
• another property is validly designated and registered as the matrimonial home

Asking the court for exclusive possession

Regardless of who owns the home, a court may order that one spouse have exclusive possession of the home, 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.

If the situation cannot wait, a court may make a temporary or interim order for exclusive possession on a motion. Ontario also confirms that a married person can ask for exclusive possession even if the home is in the spouse's name.

What the court weighs

In deciding whether to order exclusive possession, 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

On a child's best interests, the court considers the possible disruptive effects of moving on the child, and the child's views and preferences if they can reasonably be ascertained. Every case turns on its own facts, so a lawyer can tell you how these factors may apply to you.

If there is violence or you are unmarried

A person in danger should 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 other person to stay away generally or from places such as the home, workplace or the children's school.

The possession rights described above apply to spouses as defined in the Family Law Act, meaning married people. If you are not married, Ontario's guidance is to contact a lawyer about your rights and options regarding the home. Your position may depend on title or the lease and on other claims.

What to do next

• Get advice before you move out, change the locks, or sell or mortgage the home. A married spouse who does not own the home cannot be put out without a court order, selling or mortgaging generally needs the other spouse's consent or a court order, and moving out and leaving the children's day-to-day care with the other parent can become part of the care history a court looks at.
• Gather the title or lease, mortgage statements, and any written agreements.
• If you and your spouse agree on the home, put it in a separation agreement. It is unenforceable unless it is in writing, signed by the parties and witnessed.
• Contact a Family Law Information Centre, a free Ontario service with information and referral coordinators and Legal Aid Ontario duty counsel.
• If safety is a concern, call 911 first, then get legal advice about urgent orders.

Frequently asked questions