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.

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:

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):

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.