Pursuant to the Ontario Family Law Act, both married spouses have an equal right to possession of the matrimonial home. That is, both spouses of equal right to reside in, use and enjoy the matrimonial home post-separation regardless of whether title to the home is joint or in one spouse’s name solely.
Notwithstanding the equal possessory rights afforded to separating spouses, a court may direct that one spouse be given exclusive possession of the matrimonial home (and possibly the home contents), thereby directing the other spouse to vacate the matrimonial home. A court will look at several factors when determining whether one spouse should have exclusive possession of the matrimonial home. These factors are:
- The best interests of the children – will a move from the matrimonial home have disruptive effects on the children?;
- Any existing orders under Part I of the Family Law Act (Family Property) and any existing support orders;
- Any written agreement between the parties;
- The availability of other suitable and affordable accommodation;
- Any violence committed by a spouse against the other spouse or the children; and
- The financial positions – does the spouse seeking exclusive possession have the means to secure alternate accommodation? Does the spouse who may leave the home have the means to secure alternate accommodation?;
Instead of proceeding to court the parties may agree that one spouse will have exclusive possession of the matrimonial home. If there is a court Order or written agreement signed by the parties granting one spouse exclusive possession, the other spouse may not enter the home without the occupying spouse’s permission first. Absent a court Order or written agreement between the parties granting one spouse exclusive possession of the home, each spouse may continue to reside in the home and neither spouse may legally change the locks or prevent the other spouse from enjoying the use of the home.