Separation from one’s spouse or partner can occur in many different ways.  A separation occurs when spouses take steps to end their relationship, and in most cases, this happens when partners decide to live separate and apart from each other. When spouses separate, the matrimonial home is often one of the biggest issues to deal with.

Section 18(1) of the Family Law Act (the “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 is their matrimonial home.”  Therefore, the home that one was living in on the date of separation will be deemed to be the matrimonial home.

Some spouses remain in the home while living in separate rooms, while others leave the home entirely. We often receive many questions about what happens to the home when one spouse stays and the other one leaves. Section 19 of the Act states that both spouses have an equal right to possession of the home. Even if one of the spouses is the legal owner on paper, that spouse cannot change the locks or demand that the other spouse move out unless he or she obtains a court order to that effect.

Case law has shown that the right to possession of the home does not provide one with ownership rights to the home. If one spouse prefers to remain in the home without the presence of the other spouse, that spouse can seek an order for exclusive possession of the home pursuant to Section 24 of the Act. Section 24 dictates that when a court is considering whether to award possession to one spouse, it must consider the following factors: the best interests of the children, any existing orders, the financial position of the spouses, any written agreements, the availability of other suitable and affordable accommodation, and safety. If the court does not find that any of those criteria are met it is unlikely that it will grant exclusive possession to the home to one of the spouses.

If the spouse who is not enjoying the benefits of the home is unhappy about the other spouse staying in the home, he or she could make a claim for occupation rent.  Occupation rent can be requested from the court for the period from the time of separation until the date that the home is sold and the family property is divided pursuant to the equalization calculation.  The court will consider some of the following factors: who has been paying the mortgage and carrying costs of the home, the conduct of the spouses, any delays in requesting occupation rent, whether the non-occupying spouse had an opportunity to obtain equity from the home, the best interests of the children, and other factors.

Going through a separation or divorce is a complicated matter and the lawyers at Grinhaus Law Firm will navigate you through this difficult process in order to protect your rights and help you claim what is yours.  Grinhaus Law Firm is a boutique law firm conveniently located in mid-town Toronto. We have the experience and expertise necessary to help you.  For more information on this topic, feel free to call or email Grinhaus Law Firm for a free consultation.