Exclusive Possession of the Matrimonial Home in Ontario
In Ontario, the Family Law Act gives both spouses an equal right to possession of a matrimonial home, regardless of ownership. For individuals undergoing a divorce in Ontario, a major issue that arises is who gets to stay in the matrimonial home from the time the spouses have separated until the divorce. This could be months or even years later.
Generally, both spouses have a right to live in the home until the courts reach a resolution regarding the possession of the home. However, practically, situations involving a divorce occur under high conflict and emotional circumstances making it impossible for spouses to occupy the home simultaneously.
In such volatile circumstances, even if one spouse does not have legal title to the matrimonial home, they may still be able to continue to occupy the home and have the other spouse move out by obtaining a final or temporary order for exclusive possession under section 24(1) of the Family Law Act. An order for exclusive possession is a severe order against a spouse because it essentially requires that spouse to vacate the matrimonial home and find other living arrangements regardless of who owns the home.
It is important to note that the spouse who is ordered to leave does not give up his or her part of the ownership over the home. It simply allows one spouse to take possession of the home to the exclusion of the other spouse. On the other hand, the spouse that gets exclusive possession cannot sell or dispose of the home without the other spouse’s consent. Also, the spouse that gets exclusive possession may have certain responsibilities in relation to the home including paying for the upkeep and maintenance of the home.
You should also be aware that the exclusive possession provisions in the Family Law Act only apply to married spouses who are separated or are undergoing a divorce in Ontario. Common law spouses or spouses that have already divorced cannot rely on the exclusive possession provisions of the Family Law Act.
When deciding whether to grant an order for exclusive possession, the court will consider certain factors including: the best interest of the children, any existing orders, the financial position of both spouses, any written agreements, the availability of other suitable and affordable accommodations, and whether there has been violence committed by a spouse against the other spouse or against the children.
If you have children, the person who is granted custody of the children will most often be the one who stays in the family home with the children because the courts will try to maintain the status quo. This helps children adjust to their new family situation in a place they are familiar with.
Once an order for exclusive possession of the matrimonial home in Ontario is granted against a spouse, it is an offence for the spouse who is ordered to move out to refuse to comply with the order. If a spouse refuses to comply with the order, they may be arrested or face fines and or possible imprisonment.
Due to the severity of an exclusive possession order and its impact, you should seek professional legal advice from an experienced Toronto divorce lawyer about your rights and responsibilities, including available options when one of you is ordered to leave the home.
For more information about issues relating to the exclusive possession of the matrimonial home in Ontario or obtaining a divorce in Ontario, please contact our Toronto divorce lawyer.
NOTICE AND DISCLAIMER: The material posted on this website is for informational purposes only and should not be relied upon as legal advice. If you are in need of legal advice relating to your particular situation it is highly recommended to consult with a lawyer.
Divorce and Separation
Family Justice Services
Child Custody and Access
Division or Equalization of Family Property
Treatment of a Matrimonial Home
Enforcement of Support Payments