Matrimonial Home – possession (who stays in)

Possession of the Matrimonial Home

In Ontario, there is a misunderstanding, in general, with respect to the rights of married spouses to occupy the matrimonial home.

The single most important rule is the following:

• Notwithstanding the fact that the matrimonial home may be owned by one party alone, both spouses have an equal right to possession.

• In other words, neither party can “oust (eject)” the other party without the consent of the other party or a Court Order.

As a rule, the Family Law Act gives both spouses an equal right to possession of the matrimonial home, regardless of ownership.  

Of course, when parties separate, there is usually a major issue with respect to “which spouse can remain in the home” and under what circumstances can a party be ordered to “leave the home”.

The courts, more and more, have found that both spouses have a right to remain in the home until the issues arising from the separation have been resolved on a final basis. The courts understand that to “expel one party” may have a significant impact on the custody issues.

However, the Family Law Act does have a provision that allows a Judge (Court) to provide one spouse with exclusive possession of the matrimonial home prior to Trial or after Trial. The legal test to be met to obtain such an Order is complex and depends on many factors.

To discuss such an issue, or any other family Law issue, contact Marc J Coderre (family lawyer Orleans/Ottawa).

Marc J Coderre – Orleans, Ontario Family Lawyer

613-824-1542