The answer to this question in the vast majority of cases is BOTH OF YOU!

In accordance with the Family Law Act, when a couple is married both spouses have an equal right to possession of the home in which they ordinarily reside, namely their “matrimonial home”.   It is possible for couples to have more than one matrimonial home, such as a city home and a family cottage.  This possessory right applies to all matrimonial homes, regardless of who actually owns the property.  The same rights do not apply with respect to common law couples.  An unmarried spouse has no common law or statutory right to occupy their spouse’s property when the relationship ends.

When parties separate, more often than not there are high emotions, tension in the home and one spouse wants the other out.  However, even when one party is clearly to blame for the breakdown in the relationship, the other can’t simply throw them out and change the locks!  A spouse must either leave voluntarily, or by Court Order for Exclusive Possession.

The Courts are generally reluctant to make orders for exclusive possession without very good reasons.  The fact that one party had an affair or that both parties can’t stand each other is not enough for the Courts to kick someone out of their home.  The courts will consider all of the following factors:

  • The best interests of the children;
  • Any existing orders with respect to property or support;
  • The financial position of both parties;
  • Any written agreement between the parties;
  • Availability of other suitable and affordable accommodation; and
  • Any violence committed by a spouse against the other spouse or the children (not limited to physical violence).

Where evidence can be presented that there is significant conflict or domestic violence in the home, particularly in circumstances when children are living in the home and tensions are having an adverse effect on the children, the Courts are more likely to make such an Order.

In the absence of such an order spouses may, and often do, continue to live separate and apart in the same home until all issues resulting from the breakdown of the relationship are resolved.  The quickest way to get a spouse out of the home without an agreement or an Order for Exclusive Possession, is usually to negotiate a settlement of all issues as expeditiously as possible.

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