One of the more difficult choices to make when separating is deciding who will get to live in the matrimonial home, or what is otherwise known as exclusive possession. Both parties have likely developed an attachment to the home, and uprooting your life to move somewhere else can be a daunting and stressful experience.
So what exactly is exclusive possession? Does this mean a spouse now has ownership, legally known as title, of the home?
No.
This is a common misconception regarding what exclusive possession actually is. Exclusive possession is the right of a spouse to possession of the home. In other words, the ability of a spouse to live in the home, while the other spouse has to live somewhere else. This right of possession is as against the spouse and not the home itself. This WILL NOT give you title or ownership of the home by itself.
It is important to note that Married spouses have a stronger claim than Common law spouses regarding exclusive possession of the home as a result of the provisions in the Family Law Act (“FLA”). The relevant provisions are replicated below:
19.(1) Both spouses have an equal right to possession of a matrimonial home.
(2) When only one of the spouses has an interest in a matrimonial home, the other spouse’s right of possession,
(a) is personal as against the first spouse; and
(b) ends when they cease to be spouses, unless a separation agreement or court order provides otherwise.
24.(1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,
(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;
(2) The court may, on motion, make a temporary or interim order under clause (1)(a), (b).
The court will of course have some considerations they will need to weigh when making the order for exclusive possession as per s. 24(1)(3) of the FLA:
(3) In determining whether to make an order for exclusive possession, the court shall consider,
(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children.
(4) In determining the best interests of a child, the court shall consider,
(a) the possible disruptive effects on the child of a move to other accommodation; and
(b) the child’s views and preferences, if they can be reasonably ascertained.
What kind of spouses are entitled to exclusive possession?
The FLA is clear that if a person is looking for an Order in Family Court for exclusive possession, they must fall within the meaning of spouse in s. 1(1) of the Family Law Act. Basically, you need to be married. See our post on Common Law vs. Marriage for more details.
This also means that you have to currently be a spouse of the other party to claim this remedy. Divorced parties are not entitled to this remedy as they are no longer a spouse, but a former spouse. So if you are separated, you can claim this remedy, but if you have a divorce certificate and you are legally divorced, you cannot claim this remedy. See our blog regarding Separation and Divorce for more info.
Common Law Spouses are similarly limited in their ability to utilize this remedy as they do not fall under the meaning of spouse in s. 1(1) of the FLA as described above. However, this does not mean common law spouses cannot claim exclusive possession at all. Common law spouses may be able to rely on the following:
- The common law spouse may have a trust claim towards the property that could result in an injunction, effectively allowing the spouse to remain in the home until the issue is resolved.[1]
- Under s. 34(1)(d) of the FLA, possession of the home could act as a form of support payment.
- Under a restraining order under s. 46(1) of the FLA or s. 35(1) of the Children’s law Reform Act. In which case, the possession of the home would be an effect of the Order, rather that the purpose of the Order.[2]
Proving the need for exclusive possession
Under these provisions, the person claiming exclusive possession needs to show that the evidence weighs heavily in their favour for the granting of the Order.[3] In Chrobok v. Chrobok, 2006 CanLII 27308, [2006] O.J. No. 3243 (S.C.J.), the wife claimed that she needed to remain in the home as it would be too traumatic for her children to move, and they were undergoing counselling at the time. Ultimately, the wife failed to prove her argument for exclusive possession as she did not provide any supporting evidence from her children’s counsellor to support her position.
Occupation Rent
As a warning, if you are actually granted exclusive possession, you may then have to pay rent towards your former spouse who had to move out of the home! Check back for future blog posts where I will discuss how this legal remedy works.
Information provided is for legal information purposes only and is not to be construed as legal advice.
[1] Perks v. Lazaris, 2016 ONSC 1356
[2] Perks v. Lazaris, 2016 ONSC 1356, para 27.
[3] Berdun v. Berdun, 2008 CanLII 23945, [2008] O.J. No. 2016 (S.C.J.); McEachern v. McEachern, [1994] O.J. No. 1544 (Gen.Div .); Tweed v. Tweed, [1990] O.J. No. 1440 (H.C.).