Under Section 19 of the Family Law Act, each married spouse has a presumptive right to equal possession of the matrimonial home.  This means each spouse can reside in or use the matrimonial home notwithstanding whether or not title is joint or in one spouse’s name.

However, in some situations, the Court may order that one of the spouses have exclusive possession (i.e., exclusive to the other spouse) of the home.  If such an order for exclusive possession is made by the Court, the other spouse, by default, is forced to vacate the home immediately.  A restraining order is often coupled with an order for exclusive possession and ought to be considered.

When the Court is deciding whether or not to make an order for exclusive possession, it may consider any of the following:

  • Whether the spouse being forced to vacate the home has the means to secure alternative living arrangements
  • Whether it is in the best interests of the children for exclusive possession taking into consideration how disruptive to the children such an order may be
  • Whether any incidents of violence have been committed by either of the spouses against the other or against the children
  • Consideration of any written agreement, such as a separation agreement, entered into by the parties
  • Consideration of any support orders currently in place

If there is neither an order for exclusive possession nor a restraining order in place, each spouse will continue to enjoy the right to use and reside in the matrimonial home as they see fit.  This means neither spouse may change the locks on the house or make other efforts to try and exclude the other spouse from their right to equal possession of the home.  This is why in a separation or divorce that is high conflict or in which domestic violence is present, an order for exclusive possession must be considered.

If you have any questions or concerns regarding your rights and responsibilities, you are encouraged to sseek legal advice.  The content on this page is not legal advice and is for informational purposes only.  If you have any questions regarding family law, you may contact Mr. Turner directly at 905-447-1498 or by email at dale@turnerlawpc.ca