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
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
Best interests of child
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
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.