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Reality TV star, Yolanda Foster, and musician husband, David Foster, have been a hot topic in celebrity gossip this week after the couple recently announced plans to divorce. Yolanda is currently living in David's condo while he stays in a hotel and she will not allow him to access the condo even to use his piano for work.

David wants Yolanda to move out of his condo so that he can reside there, however, Yolanda refuses to budge. She claims that she has nowhere else to live and there are reports that she is experiencing financial and health difficulties.

Yolanda and David's lawyers are hoping the matter will settle, however, should the matter go to court, a judge may have to determine the issue of who will possess the condo going forward.

In Ontario, Canada, our courts determine issues like those facing the Fosters pursuant to the Family Law Act (FLA). The FLA addresses certain property rights in addition to many other family issues.

Part II of the FLA sets out that each spouse has equal right to possess the matrimonial home even if one of the spouses has no ownership interest in the home. In situations like that of Yolanda and David, this means that both spouses would have equal right to live in the condo provided that it qualifies as a matrimonial home.

What is a matrimonial home?

Section 18(1) of the FLA defines a 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. (R.S.O. 1990, c. F.3, s. 18 (1)).

A couple may have more than one matrimonial home, however, the property must be located in Ontario. It is also necessary that both spouses occupy the home at the date of separation, although they need not stay in the home year-round. This means that, for example, a couple's matrimonial homes may include all of the following:

  • The couple's cottage at which they spend most weekends throughout each summer;
  • The couple's ski chalet at which they reside during winter holidays and weekend's during the winter each year; and
  • The couple's down-town condo in which they reside when they are not at the cottage or the challet.

If there are multiple matrimonial homes, both spouses' possessory rights apply to all of their matrimonial homes.

For the Fosters, this means that even though David is the only one with an ownership interest, the condo would be a matrimonial home provided that he and Yolanda occupied the property as a family residence at the date of separation. This does not mean they needed to have spent most of their time there or that they need to have been present in the home when they separated. Understandably, many Ontario spouses winterize their lake-front cottages so that they can enjoy family time at their slope-side chalet during winters. Those spouses do not lose their possessory rights simply because they happen to separate during the winter. In fact, it often sufficient that the spouses had a pattern of spending holidays or weekends in the home while generally residing elsewhere on work days.

Who has possessory rights?

It is important to note that the definition of "spouse" in this part of the FLA is limited to those who are legally married. David and Yolanda are married and would therefore qualify as spouses under Part II of the FLA, however, unmarried couples should consider the differences between rights of married vs unmarried spouses. Unlike other parts of the FLA in which unmarried couples may be defined as spouses if they are cohabiting in a common law relationship, Part II of the FLA only applies to married spouses. Therefore, only married people have possessory rights under Part II of the FLA. Individuals that are cohabiting or in common law relationships may have rights with respect to their family home even without having legal title, however, unmarried and divorced individuals will not have possessory rights pursuant to Part II of the FLA.

Given that both spouses have possessory rights, is there any way for one spouse to exclude the other from their matrimonial home?

A spouse in David's or Yolanda's position should be aware that there are ways to obtain exclusive possession, however, this can be difficult to achieve.

A spouse can seek a Court Order for "exclusive possession" of the matrimonial home. However, pursuant to section 24(3), a court must first consider the following:

    1. the best interests of any child(ren) impacted;
    2. any court orders that are already in place;
    3. both parties' financial positions;
    4. any written agreement between the parties;
    5. availability of other suitable and affordable accommodation; and
    6. any violence between spouses or against the children.

A court can make an order to exclude a spouse from the home even if the other spouse has no legal title to the home. This means that Yolanda is not at a disadvantage simply because she is not on title for the condo.

It is important to note that neither spouse should attempt to sell, transfer, or encumber the home without a Court Order or written agreement authorizing same. Further, neither party should attempt to change the locks as a means of achieving exclusive possession of the home.

What if one spouse voluntarily vacates the home?

Even if the spouse has voluntarily left the home voluntarily, the remaining spouse in the home should not change the locks as the spouse who vacated the home maintains his or her possessory rights.

However, the spouse who vacated the home should provide reasonable notice to the other spouse before returning to the home. For this reason, it is not generally advisable for a spouse to vacate the home unless the spouses cannot safely live in the same home and, in any event; it is best to seek legal advice before moving out of the matrimonial home.

Ontario residents in Yolanda's position should keep in mind that they are not permitted to deny the other spouse all access to the home

It is also important to be aware that there are additional special considerations if there are children residing in the matrimonial home.