Section 18 of the Family Law Act defines the matrimonial home as follows: “Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence”.
Exclusive Possession of the Matrimonial Home
In Ontario, the matrimonial home is seen as more than a valuable asset. It is the shelter and focal point of the family, which gives it special treatment in family law. Regardless of ownership, both spouses have an equal right to remain in the home after separation, until a court orders otherwise. Note however, that there is no such thing as a “matrimonial home” for unmarried couples. The rights of possession apply only to married spouses.
During many separations, living situations become intolerable such that one party must leave the home. When spouses cannot agree who should leave the home, section 24 of the Family Law Act gives the court the power to grant a spouse exclusive possession of the matrimonial home.
However, courts do not make these orders lightly. This is a serious order that effectively forces one party to move out of the home, and it often prejudices that spouse’s claim for custody. The moving party must bring compelling evidence to show that continued shared use of the home is a practical impossibility, or that the well-being of the children is threatened. In coming to its decision, the court must consider the following factors:
- The best interests of the children affected;
- Any existing orders under Part I (Family Property) and any existing support orders;
- The financial position of the spouses;
- Any written agreement between the parties;
- The availability of other suitable and affordable accommodation; and
- Any violence committed by a spouse against the other spouse or children
Once an order for exclusive possession of the matrimonial home is granted, it becomes an
offence to disobey the order. The non-complying spouse can face fines or imprisonment.
