Article written by Ron Shulman
If you and your spouse are undergoing severe marital difficulties, there may come a time when it becomes too difficult to live under the same roof together. A frequent question we get from unhappy spouses in this situation, is whether one of you can kick the other out of the matrimonial home.
For legally married spouses in Ontario, the answer is a firm “no.” For common law spouses, the answer is a little more complex.
First, it’s important to draw that legal distinction between those two types of partnership. Married spouses have undergone a formal marriage ceremony, whereas common-law spouses have not. Common-law relationships are established once you and your partner have been living together (or cohabiting) for several years.
The laws relating to the legal right to stay in the home you and your ex shared will differ depending on which type of partnership you had. While colloquially, the term “matrimonial home” tends to relate to marriages, for the purposes of this discussion, we will use that term equally for both formal marriages and common-law relationships.
For Married Spouses
If you are formally married, then under the Ontario Family Law Act your matrimonial home is given special status and is subject to an important principle: As spouses – whether in happier times while married, or newly-separated – you each have an equal right to possess the matrimonial home. This means that neither of you has the right to eject the other one after your split – whether physically or figuratively, by changing the locks. This remains true regardless of which of you brought the home into the marriage, and regardless of who holds title to it now.
By law, this equal right to possession lasts until either:
1) You have negotiated and signed a formal separation agreement which addresses this issue, or
2) One of you has obtained a court order in your favour, solely entitling you to what is known as “exclusive possession” of the matrimonial home. The right to exclusive possession usually lasts until a trial of all your divorce-related matters can be held, or until a court expressly orders otherwise.
However, even if your ex has obtained the right to exclusive possession and now has court-ordered permission to remain in the matrimonial home, this does not necessarily mean you can never return. A court may see fit to add terms to the order, allowing you to re-enter the home on a periodic basis (with notice to your ex) or else on a specific date or for a specific purpose (like retrieving your belongings).
Also, the fact that your ex has been granted exclusive possession does not mean that he or she has the right to unilaterally sell or mortgage the matrimonial home, or to dispose of any of the possessions and belongings that are located in it. Essentially, your ex must keep the status quo until a court has had a chance to resolve the property issues and other divorce-related issues between you.
For Common-Law Spouses
If you are part of a common-law partnership, then your rights relating to the matrimonial home are not the same as those afforded to formally-married spouses. Specifically, you do not have an equal right to possess the family home, whether throughout the relationship or upon separation. Instead, the home belongs to whichever of you purchased and owns it in the normal sense, as that status is reflected by the registered title to the property.
This means if you are the common-law spouse who owns the family home, you are entitled to eject your common-law spouse once your relationship breaks down.
With that said, there are still certain spousal-support rights under the Family Law Actto which even a common-law partner may be entitled (provided he or she meets the statutory definition of “spouse”), and which under Court Order, may be bound up with the right to stay in the home in some cases.
As a common-law spouse, you may also be entitled to ask the Court to recognize certain claims you have in the home based on the legal concept of a “constructive trust” (although this does not normally extend to the right to actually stay in a home for which you do not own title). Cases of this type are decided by the courts on a case-by-case basis.