Under the Family Law Act, married parties have special rights to reside in the matrimonial home, even if they are not on title.
Can my spouse change the locks? Can I be forced to leave the home if I am not on the title? Can my spouse sell our home without my agreement? My office receives these panicked questions every day.
Married parties have a right to remain in the matrimonial home until there is an agreement or court order stating otherwise. In this context, spouses are married parties.
Section 18(1) of the Family Law Act defines a matrimonial home as every property in which either spouse has an interest and which is currently, or was at the time of separation, “ordinarily occupied by the person and his or her spouse as their family residence.” (Only homes located in Ontario are covered by this definition.) Note that it does not matter which married spouse owns the property.
Housing is expensive in London/St. Thomas. What are your rights?
Both spouses have an equal right to possession of a matrimonial home, in the absence of a court order or agreement to the contrary, both spouses have an absolute right to occupy a matrimonial home. A title-holding spouse may not block the non-title spouse from accessing or residing in the home. Neither spouse may change the locks or remove jointly owned property from the home.
A matrimonial home may not be sold or encumbered without the express consent of both spouses. This means that a new mortgage cannot be taken out; it may also mean that the title holder cannot lease the home.
Designation Under the Family Law Act
As additional protection, a non-title-holding spouse may wish to consider registering a designation as a matrimonial home on the title to the property. This registration serves as notice to the world that the property is a matrimonial home. Registration of a designation on the title may prevent the title-holding spouse from selling or encumbering the property, thereby preserving the non-title spouse’s interest in the property. If a title-owning spouse deals with a property that is designated as a matrimonial home, the fact that the property was designated may assist the innocent party in setting aside that transaction.
Exclusive Possession of the Matrimonial Home
Regardless of the ownership of a matrimonial home and its contents, and despite a spouse’s right of possession, the court may order, that one spouse have exclusive posession of the matrimonial home. In determining whether to make an order for exclusive posession, the court considers a number of factors, including: the best interests of children affected, the spouses financial positions, written agreements, availability of other suitable and affordable accommodation; and conflict between the parties, including violence against a spouse or child.
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