“Exclusive Possession” of Your Matrimonial Home: What Does it Mean?

Many of you might know that under the Ontario Family Law Act (FLA), your matrimonial home has special status once you decide to separate from and divorce your spouse. At that point, your matrimonial home (defined as every property that “was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence”) is subject to special rules governing how it will be dealt with. This is regardless of whether legal title to the home is only in your name, is in both your names, or is in your spouse’s name alone.

One of those rules pertains to what is known as “exclusive possession”.  This brief article will touch on the basics of this concept.

Exclusive Possession, Defined

At its simplest, this is a statute-based right under the FLA; once you separate it gives either you or your spouse the exclusive right to live in (i.e. “possess”) the matrimonial home to the exclusion of the other. You can obtain this right by making an application to the court for an Order for Exclusive Possession. 

What’s the Test?

If either you or your spouse are seeking exclusive possession, you must give the court evidence pertaining to the following factors: 

• Best Interests of the Children: This is always the primary consideration. The court will ask itself how granting exclusive possession will impact the children’s emotional, social, and educational needs. 
• Your Respective Financial Positions: The court will also examine each of your financial capabilities. E.g. Can one of you afford to live elsewhere? Can the other one keep up the maintenance on the home largely independently? 
• Availability of Other Accommodation:  The court will consider whether alternative accommodation is available for the spouse who is not granted exclusive possession. This assesses factors such as the rental housing market, proximity to your respective workplaces and to the children’s schools, etc.
• Any Existing Court Orders: Existing orders regarding support or parenting time may influence the decision. 
• Family Violence or Abuse: Finally, any evidence of family violence (i.e. domestic violence or abuse) is a critical factor, since the court will want to make an order that best protects any victims, and prevents further harm.

 

Why is Possession Exclusive? 

Exclusive possession may seem like a drastic remedy.  It essentially shuts out one spouse from the matrimonial home, until the divorce and related issues can be settled.  But it’s available because FLA recognizes that granting one separated spouse legal possession to the exclusion of the other is the right call in some circumstances. For example:

• It recognizes that the matrimonial home holds significant emotional and practical importance for both spouses and their children.
• It safeguards the stability and well-being of the family, especially any dependent children whose best interests are fostered by them staying in the home with one of the spouses.
• It can address situations involving domestic violence, where one spouse needs protection from the other, especially where the victimized spouse requires stability to maintain a suitable environment for the children.

Related: How To Manage Divorce With Children In The Picture

How Does Exclusive Possession Affect Legal Rights? 

It’s important to know that an order for exclusive possession does not affect the ownership or equity of the matrimonial home, for either you or your spouse. It simply grants one of you the right to reside in the home – at least until the divorce proceeds further and a court makes a different order.  The other one does not lose any property rights in the meantime.

Note that the court may also attach conditions when making an order for exclusive possession, such as: 

• Duration: Specifying how long the exclusive possession will last.
• Financial Responsibilities: Determining precisely who will be responsible for mortgage payments, utilities, and maintenance costs during the exclusive possession period.

Will Exclusive Possession Impact the Divorce and Property Division? 

As mentioned, an order for exclusive possession only affects your immediate, short-term living arrangements. It does not determine how your property will be divided as part of your divorce. 

Instead, the matrimonial home is still subject to equalization of net family property in the usual course, as provided by the FLA. Both you and your spouse retain your existing ownership interests (if any), and these interests will be fully considered by the court during the property settlement process.

Related: How is Property Divided Between Spouses?

The Takeaway

Perhaps you’re the one seeking exclusive possession of your matrimonial home, or perhaps you’re the one who needs to move out. Either way, you can rest assured that the law strives to fairly balance the best interests of everyone in your family – especially your children – and help navigate the unavoidable turbulence of your marital breakdown. It’s important to understand your rights and obligations in this regard. Feel free to give our offices a call.