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You and your spouse have separated. There is a great deal of tension in the home and you want your spouse out of the house. You have the locksmith on standby and your spouse’s clothes are packed and waiting in the garage. Can you just kick them out and change the locks? The short answer: “no”.

I’d like to talk to you about orders for exclusive possession.

If you are married, you and your spouse have an equal right of possession of your matrimonial home. This equal right of possession only exists in the situation where at least one of you has an interest in the home and you ordinarily occupy the property as a family residence, whether currently or at the time of separation. It is possible for couples to have more than one matrimonial home, for instance a family cottage.

It just may work out that the other spouse moves out of the home voluntarily or you negotiate an agreement that one of you will possess the home temporarily to the exclusion of the other.

But what do you do when the other person just won’t leave? You have to proceed to court and bring a motion for an order for exclusive possession of the home.

In order to be successful on such a motion, the Court will consider the following criteria:

  1. The best interest of the children affected. Here the Court considers the effects of a move on the children. For instance, will it result in the children having to change schools in the middle of their school year?
  2. Any existing orders regarding family property and any existing support orders. If the home will have to be sold to satisfy an equalization payment the court is more inclined to order that the home be sold;
  3. The financial position of both spouses. When considering such a motion, one of my first questions to clients is, can you afford to pay the utilities and other costs related to operating the home?
  4. Any written agreement between the spouses;
  5. The availability of suitable accommodation. In my experience, the judge will be more open to order that the other spouse move when they know that the person has friends or family that they can stay with, and
  6. Any violence committed by a spouse against the other spouse, or the children.

Once you have your order in hand, you can change the locks. Now, who pays for the locksmith?

For more information about your home and property division, please visit our website. If you need legal advice about your own situation, please contact us at 905-581-7222 to schedule an initial consultation.