October 30, 2023
In a separation, can one person force the other out of the house?
When you are married and you have decided to separate, often staying together in the same home is uncomfortable.
It can be a tense situation because of the emotions involved, even if you have amicably agreed to separate.
The emotions can range widely here. It can be awkward at one end of the spectrum and downright horrible if tensions are high and people sink into the darker sides of behaviours. It can be something repetitive and annoying, such as one spouse always leaving the dishes piled up and never runs laundry/mows the lawn/cleans the bathroom.
It can be much worse such that you feel like you are always walking around on eggshells.
The question pops up, “can I get him or her to move out?”
The answer is maybe.
In true legal fashion, it really depends upon the circumstances.
Having one spouse removed from the home is called “exclusive possession” by the spouse who remains.
Yes, you can start a court case over the separation and after your case conference you can bring a motion to ask for one party to leave the house. If it is urgent, you may even be able to ask for an order for exclusive possession before you have a case conference. It is detailed under s. 24 (1) of the Ontario Family Law Act.
You can ask for a spouse to move out even if you do not own the home. This is because the law relating to who can live in the home, known as possession, is separate from the issue of receiving a share of the home in equalization.
Asking for an order for Exclusive Possession of the matrimonial home is not a 100% guarantee that a court will order it though. In each case, the circumstances have to be carefully reviewed by the Judge. Often the courts will order it in cases of domestic violence and concerns for the children. Factors a court will consider are the best interests of the children, any relevant already existing court order, financial circumstances of both spouses, any written agreement between the parties (such as a Marriage Contract), the availability of other suitable and affordable accommodation and any domestic violence committed to the spouse or children.
Does your situation qualify for such an order? Give us a call and we can talk you through it.
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