You were married. Now you’re separated (not divorced) but you still own a matrimonial home with your former spouse. He/she, however, has moved out of the home fair and square, and you live there alone now. Can you exclude your spouse by changing the locks on the home?
In Ontario, generally, the legal answer to this is no.
Who has possession of your matrimonial home?
According to Ontario legislation, both married spouses have an equal right to possession of a matrimonial home after separation. There is currently no legislation that permits a spouse to exclude another spouse by changing the locks.
The equal right to possession will exist even after separation, unless there is a separation agreement in place or a court order that gives one spouse the sole possession of the home (i.e “exclusive possession”). Until either a separation agreement or court Order has been made, neither spouse can formally exclude the other from the home.
How is possession to your matrimonial home decided?
The separation agreement or court Order should set out which spouse has the exclusive possession to the home. That will determine whether or not that spouse is allowed to change the locks— even if the legal title of the home is with the other spouse. It is important to note that if a spouse has already moved out of the home, they may not be entitled to come and go as they please. This includes situations wherein the locks are not yet changed. Adequate and reasonable notice of any intention to return to the home must be made before doing so.
If the matter proceeds before a judge for a court Order, the judge will assess a variety of factors. These factors include:
- Financial position of both spouses
- Past violence to the other spouse/children
- Availability of other suitable and affordable accommodation
- Any existing court orders to enforce obligations and/or the best interests of any children involved
The above factors will help the judge form a decision in regards to who should get exclusive possession of the matrimonial home. Notably however, exclusive possession does not give one spouse the right to sell or dispose of any of the furniture or other belongings in the home. It is not until all of the separation and divorce issues, such as equalization of net family property, have been fully resolved by a court that one spouse can gain this right.
Did this article answer your questions or concerns about matrimonial home possession? If you would like to speak with one of our lawyers regarding further issues related to home possession, please contact us at (416) 840-1475 or schedule your free initial consultation here.