Who Gets the House?

Ownership has no bearing on possession. S. 19(1) clearly states that both spouses have an equal right to possession of a matrimonial home and subsection (2) explains situations where the home is owned by one of the spouses only.

Possession of matrimonial home
19. (1) Both spouses have an equal right to possession of a matrimonial home.

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(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.
Therefore, a spouse who does not hold legal title to a matrimonial home may be able to occupy it or get a final or temporary order for exclusive possession pursuant to s. 24(1) of the Act.

Exclusive possession is a very severe order to make against a spouse since an order of this nature will essentially require the spouse to vacate the house and find other living arrangements.

Due to the hardship this may impose the Act provides a set of criteria that the court must consider when making a determination regarding exclusive possession. S. 24(3) provides that:

Order for exclusive possession: criteria
(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.

Best interests of child
(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 reasonably be ascertained.

In a 1987 case from the Ontario District Court, a husband and wife separated. He had a prosperous business and she gave up her employment in order to stay home and take care of the children. During the separation, the husband verbally harassed her and sent her numerous menacing letters which caused intense stress and anxiety. She brought an application for exclusive possession due to the severe psychological stress he was inflicting which was making cohabitation impractical and intolerable. It was granted to her on the basis of the factors enunciated in s. 24(3), such as:

Her husband, having access to greater resources, would be able to find an alternative accommodation with more ease.
She had a stronger emotional attachment to the house

Once an order for exclusive possession is made against a spouse it becomes an offence punishable by either fine or imprisonment to refuse to comply with it. Subsection (6) gives the police the authority to arrest without a warrant a spouse whom a police officer believes has contravened the order. Also, s. 25.1 allows the court to impose a temporary restraining order prohibiting one of the spouses from contacting or communicating with the other if it is necessary to ensure that an application is dealt with properly.

Other final and/or temporary orders that a court may make with regards to possession are listed in s. 24(1):

Order for possession of matrimonial home
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,
(a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents;
(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;
(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;
(d) direct that the contents of the matrimonial home, or any part of them,
(i) remain in the home for the use of the spouse given possession, or
(ii) be removed from the home for the use of a spouse or child;
(e) order a spouse to pay for all or part of the repair and maintenance of the matrimonial home and of other liabilities arising in respect of it, or to make periodic payments to the other spouse for those purposes;
(f) authorize the disposition or encumbrance of a spouse’s interest in the matrimonial home, subject to the other spouse’s right of exclusive possession as ordered; and
(g) where a false statement is made under subsection 21 (3), direct,
(i) the person who made the false statement, or
(ii) a person who knew at the time he or she acquired an interest in the property that the statement was false and afterwards conveyed the interest,
to substitute other real property for the matrimonial home, or direct the person to set aside money or security to stand in place of it, subject to any conditions that the court considers appropriate.

You should be aware of the fact that any order made pursuant to s. 24(1)(a)-(e) may be varied, discharged or suspended if the court is satisfied that there has been a material change in the circumstances of the spouse applying for the variation.

The right of redemption and to notice is available to spouses who have an equal right to possession under s. 19 but who do not have legal title to the matrimonial home. This right arises where a third party attempts to enforce a lien, encumbrance or execution or exercise a forfeiture against the property and allows the spouse who does not have title to the matrimonial home to step in and redeem property that is about to be foreclosed on.

The spouse who exercises their right to redemption pursuant to s. 22(1) does not get title to the property, however, he or she may be able to make a claim for compensation and may be able to get possession of the property. If there is notice to a spouse regarding a third party’s attempt to enforce a lien, encumbrance or execution or exercise a forfeiture against a matrimonial home and he or she chooses not to exercise the right of redemption then pursuant to s. 22(5) the spouse loses his or her interest and his or her rights end on the completion of the realization or forfeiture.

Section 26(1) of the Act deals with joint tenancies in matrimonial homes between a spouse and a third party. This section states that if a spouse dies owning an interest in a matrimonial home as a joint tenant with a third party (who is not the surviving spouse) then the tenancy will be deemed to have been severed immediately before the death. This prohibits the interest from passing on to the third party through the right of survivorship and instead may allow the surviving spouse to inherit it.

Lastly, subsection (2) states that despite s. 19(1)-(2) a spouse who has no interest in a matrimonial home but who is nonetheless residing in it pursuant to an agreement or court order has the right to remain there against a deceased spouse’s estate, rent-free, for a period of sixty days.