Separation is a challenging time for spouses, especially when it comes to deciding who stays in the family home. In Ontario, both the Family Law Act (FLA) and the Divorce Act provide guidance on this issue, particularly through the concept of exclusive possession of the matrimonial home. This legal principle allows one spouse to remain in the home while the other must vacate, regardless of ownership.
What Is Exclusive Possession?
Exclusive possession is a court order that grants one spouse the legal right to live in the matrimonial home, even if the other spouse co-owns it. This order does not change ownership but determines who can live in the home for the time being. Courts grant exclusive possession when it’s deemed necessary for fairness or the well-being of one spouse or children. A family lawyer in Ontario can help navigate the complexities of applying for exclusive possession.
Who Can Apply for Exclusive Possession?
Under Section 24 of the Family Law Act, only married spouses can apply for exclusive possession of the matrimonial home. This provision does not apply to common-law partners, who must rely on different legal remedies.
Factors Considered by the Court
When deciding whether to grant an order for exclusive possession, courts weigh several factors, including:
- Best Interests of the Children – If children are involved, their stability and well-being are the court’s primary concern.
- Financial Position of Both Spouses – The court assesses whether one spouse can find alternative housing.
- Any Existing Agreements – If there’s a separation agreement addressing possession, the court will consider its terms.
- History of Domestic Violence – If there’s evidence of abuse or threats, the court may order exclusive possession to protect the vulnerable spouse and children.
- Other Circumstances – The emotional and psychological impact on each spouse is also a factor.
Does Ownership Matter?
One common misconception is that a spouse who solely owns the home cannot be removed from it. However, the law is clear: even if only one spouse’s name is on the title, the court can still grant the other spouse exclusive possession if the circumstances warrant it.
How to Apply for Exclusive Possession
To seek exclusive possession, a spouse must file an application in the Ontario Superior Court of Justice under the Family Law Act. Legal representation is recommended, as the process involves presenting evidence to justify the request.
Can Exclusive Possession Be Temporary?
Yes. Exclusive possession orders are often temporary and last until property division or divorce is finalized. In some cases, the court may set a specific time limit.
What about Mortgage and Expenses?
The spouse who is granted exclusive possession is often responsible for maintaining the home, including mortgage payments, utilities, and maintenance. However, the court may order financial contributions from the other spouse, depending on their financial circumstances.
Key Takeaways
- Exclusive possession grants one spouse the right to stay in the home, even if both own it.
- The court considers children’s welfare, financial situations, domestic violence, and other factors when making a decision.
- Ownership does not automatically determine who stays in the home.
- Exclusive possession is usually temporary and subject to review.
If you’re going through a separation and need legal advice on exclusive possession of your matrimonial home, Hashmi Law Group can help. With over 15 years of experience in family law, we offer expert guidance tailored to your situation.Understanding your legal rights and options are essential when dealing with matrimonial home disputes. By being informed and seeking professional legal advice, you can make the best decisions for your future.
For legal guidance on your rights regarding the matrimonial home, call us at 905-503-1486 or 647-772-8187, or book a consultation.
We have offices in Toronto and Mississauga. In addition to regular business hours, we offer weekend and after-business-hours appointments if required.
