Your name is not on the deed. You did not contribute to the down payment. Your spouse paid every mortgage payment for fifteen years. You still have equal rights to stay in the matrimonial home during separation.
Who has the right to stay in the matrimonial home during separation? Both spouses have equal right to occupy the matrimonial home during separation, regardless of who holds legal title or who contributed financially. Neither spouse can unilaterally force the other to leave.
Ontario family law grants both spouses equal possession rights to the matrimonial home until a court orders otherwise through an exclusive possession order or the parties reach an agreement. Even if only one spouse owns the matrimonial home, both have the automatic legal right to remain in the property during separation.
Courts can grant exclusive possession orders giving one spouse the right to remain in the matrimonial home while requiring the other to leave. These orders are not automatic. You must apply to the court and prove you meet specific criteria.
The court weighs factors including where children will live, financial circumstances of each spouse, alternatives available to each spouse, and whether domestic violence has occurred related to the matrimonial home.
I represent clients throughout Toronto, Vaughan, and Brampton in disputes over matrimonial home possession. Understanding your matrimonial home rights prevents you from being illegally forced out or facing criminal charges for refusing to leave property you have a legal right to occupy.
Equal Possession Rights to the Matrimonial Home Explained
Ontario’s Family Law Act grants both spouses equal rights to possess the matrimonial home, regardless of ownership. This rule protects spouses who do not hold legal title to the matrimonial home.
Why Title Does Not Matter for Matrimonial Home Rights
The matrimonial home receives special protection under Ontario family law. When property becomes the matrimonial home, ownership becomes secondary to possession rights.
Key principles about matrimonial home possession:
- Both spouses can legally occupy the matrimonial home during marriage and separation
- The spouse whose name is not on the matrimonial home title cannot be evicted like a tenant
- Changing locks on the matrimonial home or removing belongings without consent may be illegal
- Police will not remove a spouse from the matrimonial home without a court order
- These matrimonial home rights exist from the date of marriage until divorce is finalized
What Qualifies as a Matrimonial Home
Not every property you own qualifies as a matrimonial home. The matrimonial home designation matters because only matrimonial homes receive equal possession protection under Ontario law.
A property qualifies as a matrimonial home when:
- You and your spouse ordinarily occupied it as your matrimonial home
- At least one spouse had an ownership interest in the property
- You lived in the matrimonial home together at the time of separation
You can have multiple matrimonial homes if you regularly occupied more than one property. A cottage you used every summer and most weekends may qualify as a second matrimonial home.
Properties that do not qualify as matrimonial homes include:
- Investment properties neither spouse lived in
- Rental properties you own but do not occupy
- Property purchased after separation
- Vacation properties used only occasionally
Exclusive Possession Orders: Forcing One Spouse to Leave the Matrimonial Home
An exclusive possession order removes one spouse’s right to occupy the matrimonial home and gives the other spouse sole possession of the matrimonial home. These orders are temporary and remain in effect until trial or until the court changes them.
Who Can Obtain Exclusive Possession of the Matrimonial Home
Courts do not grant exclusive possession of the matrimonial home automatically. You must prove your case meets specific criteria for removing a spouse from the matrimonial home.
✓ Grounds for Exclusive Possession
- Child’s best interests: When children will remain in the matrimonial home with one parent, courts prefer stability and may grant that parent exclusive possession
- Domestic violence or abuse: When one spouse poses a safety risk in the matrimonial home, courts prioritize the victim’s safety through exclusive possession
- Financial circumstances: When one spouse cannot afford alternative housing but the other can, courts may grant possession of the matrimonial home to the financially disadvantaged spouse
- Conduct making cohabitation intolerable: When one spouse’s behavior makes continued cohabitation in the matrimonial home impossible (harassment, threats, property destruction)
Factors Courts Consider for Matrimonial Home Possession
Courts weigh multiple factors when deciding exclusive possession applications for the matrimonial home:
Best interests of children: This carries the most weight in matrimonial home disputes. Courts minimize disruption to children’s lives. The parent with primary care typically has a stronger case for remaining in the matrimonial home.
Financial ability: Courts examine which spouse can afford the matrimonial home mortgage, taxes, utilities, and maintenance.
Alternative housing: Courts compare each spouse’s options beyond the matrimonial home. One spouse having free family accommodation while the other has nowhere to go affects decisions.
Domestic violence: Any history of violence, threats, or intimidation in the matrimonial home heavily favors the victim in possession disputes.
Conduct: Refusing to communicate, deliberately making cohabitation in the matrimonial home difficult, or violating orders weakens your case.
The Application Process for Exclusive Possession
Obtaining exclusive possession of the matrimonial home requires filing a court motion or including the request in your initial divorce application.
Required steps for exclusive possession of the matrimonial home:
- File a motion for exclusive possession with supporting affidavit evidence
- Serve the motion and materials on your spouse
- Attend the court hearing (usually within a few weeks for urgent matters)
- Present evidence supporting your position for matrimonial home possession
- Obtain the court order specifying possession terms and duration
Temporary exclusive possession orders for the matrimonial home often remain in place until trial, which can take one to two years. The order does not determine ownership or final property division. It only addresses who can occupy the matrimonial home during separation.
Financial Obligations: Who Pays for the Matrimonial Home During Separation
Separation does not eliminate financial obligations related to the matrimonial home.
Mortgage and Property Costs
When both spouses are on the matrimonial home mortgage, both remain legally liable regardless of separation. The lender can pursue either spouse if mortgage payments stop.
Common matrimonial home scenarios:
Both on mortgage, one stays: The occupying spouse should pay the full mortgage. Many separation agreements require indemnification for the matrimonial home.
One on mortgage, other has possession: The person on the mortgage remains liable even if not living in the matrimonial home. Courts can order “occupation rent.”
Neither can afford alone: Spouses may continue sharing costs of the matrimonial home temporarily or sell the home.
Property taxes and insurance must continue on the matrimonial home. The occupying spouse typically pays utilities and routine maintenance. Major repairs to the matrimonial home require discussion between both spouses.
Occupation Rent for the Matrimonial Home
When one spouse occupies the matrimonial home and the other does not, courts can order the occupying spouse to pay “occupation rent” to compensate the excluded spouse.
This is not automatic – you must request it for the matrimonial home. Courts consider who left voluntarily, whether the occupying spouse pays all costs, and each spouse’s financial circumstances.
Forcing Sale of the Matrimonial Home
When spouses cannot agree on keeping or selling the matrimonial home, courts can order the property sold.
When Courts Order Sale
Courts order matrimonial home sales when:
- Neither spouse can afford to buy out the other spouse’s interest in the matrimonial home
- Both spouses want to sell the matrimonial home and split proceeds
- One spouse wants to sell but the other refuses without justification
- The matrimonial home cannot be divided practically
- Keeping the matrimonial home creates financial hardship for one or both spouses
Courts resist forcing sales when minor children live in the matrimonial home and sale would disrupt their schooling or stability. Judges balance children’s need for stability against the financial reality of affording the matrimonial home.
Sale vs Buyout Comparison for the Matrimonial Home
Spouses facing matrimonial home division choose between selling to a third party or one spouse buying out the other’s interest.
| Factor | Forced Sale | Buyout by One Spouse |
|---|---|---|
| Timeline | 3-6 months typically to list, sell, and close | Can occur immediately if financing is available |
| Costs | Real estate commission (typically 5%), legal fees, staging costs | Appraisal fee, legal fees, mortgage refinancing costs |
| Control | Third-party buyer determines price through market | Spouses control price through appraisal or agreement |
| Tax Impact | Principal residence exemption usually applies – no tax | Transfer can be tax-free if done properly |
| Children | Requires moving, changing schools potentially | Allows children to remain in family home |
| Emotional Impact | Clean break from property and memories | One spouse retains connection to family home |
Buyout Process and Costs
When one spouse wants to keep the matrimonial home, they must buy out the other spouse’s ownership interest in the matrimonial home.
Steps for a matrimonial home buyout:
- Obtain current property appraisal or agree on fair market value
- Calculate equity (value minus mortgage balance on the matrimonial home)
- Determine each spouse’s ownership share (usually 50/50)
- Calculate buyout amount (other spouse’s share of equity)
- Arrange financing to pay the buyout amount
- Transfer title through deed or transfer of land
- Remove departing spouse from the matrimonial home mortgage (requires lender approval)
📊 Matrimonial Home Buyout Example
The buying spouse needs financing for both the buyout payment ($225,000) and to refinance the existing mortgage ($350,000) into their name alone – total financing needed: $575,000
The buying spouse needs financing for both the buyout payment and to refinance the existing matrimonial home mortgage into their name alone. Lenders will assess whether that spouse can qualify for the full mortgage based on their individual income.
Removing a Spouse from the Matrimonial Home Legally
You cannot force your spouse to leave the matrimonial home through intimidation, changing locks, or cutting off utilities. These actions violate matrimonial home possession rights and may constitute criminal offenses.
Legal Methods to Remove a Spouse
Four legal pathways exist to remove a spouse from the matrimonial home:
1. Mutual agreement: Both spouses agree one will move out of the matrimonial home voluntarily. This agreement should be in writing to prevent disputes about whether departure was voluntary or forced.
2. Exclusive possession order: Apply to court for an order granting you sole possession and requiring your spouse to vacate the matrimonial home. This requires meeting the criteria discussed earlier.
3. Restraining order with residence exclusion: When domestic violence or threats occur, courts can issue restraining orders prohibiting one spouse from attending at the matrimonial home.
4. Separation agreement: Negotiate a comprehensive separation agreement that addresses matrimonial home possession. The spouse agreeing to leave should receive compensation or other considerations in exchange.
What Not to Do: Illegal Actions
These actions violate your spouse’s matrimonial home possession rights and create legal problems:
❌ Changing Locks
This is forcible entry and may constitute an offense under the Criminal Code
❌ Removing Belongings
Your spouse’s personal property remains theirs. Removing or disposing of it may be theft or mischief
❌ Cutting Utilities
Deliberately disconnecting power, water, or heat may constitute harassment or criminal harassment
❌ Physical Intimidation
Threats or violence to force departure can lead to assault charges and restraining orders
❌ Selling Without Consent
You cannot sell the matrimonial home without your spouse’s written consent or a court order
Police Involvement in Matrimonial Home Disputes
Police cannot remove a spouse from the matrimonial home simply because you ask them to. Both spouses have equal possession rights, and police will not intervene in civil property disputes without a court order.
Police will intervene when:
- Assault, threats, or domestic violence occurs at the matrimonial home
- One spouse has an exclusive possession order or restraining order
- Criminal offenses like forcible entry or property damage occur
- Someone’s safety is at immediate risk
If your spouse changes locks and refuses you entry to the matrimonial home, call police. Provide proof you are married and this is your family residence. Police can require your spouse to provide access or keys based on your equal possession rights.
Credit Impact and Mortgage Responsibility
Separation does not change mortgage obligations on the matrimonial home. If both names are on the mortgage, both remain fully liable. When your spouse defaults, your credit suffers equally.
Protection strategies: Monitor payment status on the matrimonial home, include mortgage obligations in temporary agreements, make payments yourself if your spouse defaults and seek reimbursement, and document all payments.
Removing a spouse from the mortgage requires lender approval. The remaining borrower must qualify independently by applying to refinance, demonstrating sufficient income, paying the buyout amount, and completing refinancing.
When the remaining spouse cannot qualify, both must stay on the mortgage until sale or income increases.
What if my spouse owned the matrimonial home before marriage?
You still have equal possession rights to the matrimonial home during marriage and separation. Ownership before marriage affects property division (the pre-marriage value may be excluded from equalization), but does not affect possession rights during separation.
Can I move back into the matrimonial home after leaving?
If you left the matrimonial home voluntarily without a court order or agreement saying otherwise, you generally retain the right to return. However, the longer you stay away, the harder it becomes to reclaim possession.
Your spouse may argue you abandoned your possession rights or established separate residence.
If you were forced out illegally or left due to violence, you maintain your matrimonial home possession rights regardless of time away.
What happens if we cannot agree?
When spouses cannot agree on possession, buyout, or sale of the matrimonial home, the court decides at trial. The court can order exclusive possession to one spouse, order the matrimonial home sold, or order one spouse to buy out the other at a court-determined value.
These proceedings take months to years.
Can my spouse list the matrimonial home for sale without my permission?
No. Both spouses must consent to selling the matrimonial home. A real estate listing without both signatures is invalid. Title companies and lawyers will not complete a sale without both spouses signing the necessary documents.
If one spouse insists on selling and the other refuses, the spouse who wants to sell must bring a court motion requesting an order for sale.
Do I still have rights if we were common-law?
No. Ontario’s matrimonial home possession rights apply only to married spouses. Common-law partners do not have automatic equal possession rights.
If the home is in your partner’s name only, they can ask you to leave. Your only claim would be based on property law principles like unjust enrichment or resulting trust, not family law possession rights.
📊 Matrimonial Home Rights: Key Statistics
Regardless of Title
Trial Resolution
Remove a Spouse
Protect Your Matrimonial Home Rights with Expert Legal Guidance
Matrimonial home rights affect where you live during separation and your financial security through property division. Understanding your matrimonial home possession rights prevents you from being illegally forced out.
Understanding exclusive possession criteria helps you know whether you can obtain an order removing your spouse from the matrimonial home.
At Nussbaum Law, we handle matrimonial home disputes throughout Toronto, Vaughan, and Brampton. We bring motions for exclusive possession, defend against improper possession claims, negotiate buyout terms, and protect clients from illegal lockouts or forced departures.
Whether you need to remain in the family home for your children’s stability, cannot afford alternative housing, or face safety concerns requiring your spouse’s removal, understanding the legal process and timelines protects your matrimonial home interests.
Contact us to review your specific situation and determine your options for securing or maintaining possession of the matrimonial home.
