When spouses are married, the home (or homes) in which they lived together, and separated are special. Those properties are "matrimonial homes." In Ontario, on separation and until there is a Divorce Order, both spouses are equally entitled to stay in the matrimonial home, regardless of who owns it. That means one spouse cannot do anything to "kick out" the other or prevent their estranged spouse from going back into your home other than getting a court order for “exclusive possession.” That Order gives one spouse the exclusive rigth to be in the home. Click this link for a lot more information on spouses’ rights to stay in matrimonial homes.
It is important to note that spouses who are not legally married (common law couples) do not have matrimonial homes and common law couples do not have rights under Ontario Family Law to stay in a home after separation. There may be things a common law spouse can do under landlord tenant law or other laws. But, if the end of the relationship is going that badly, speak to a top family law lawyer right away.
When the spouse who is not “on title” contributed to the value in the home, that may give that “non-titled spouse” an ownership interest in the property under the Principles of Equity. Those principles operate when spouses
1. treated a home owned by one of them as if it was really owned by both of them and
2. one spouse has lost out as a result.
Clearly that is not fair, and fairness is what the Principles of Equity are about.
However, for married spouses, making a claim under Equity for an interest in a property is harder because the value of matrimonial homes is always included in Ontario’s Equalization of Property on separation - unless there is a marriage contract. If the value of the home is already being shared, one spouse does not really lose out unless there is a big change in the value of a matrimonial home after separation. Consult with a lawyer if that may be the case.
Hopefully, if one spouse changes the locks, the police will recognize the other spouse's rights under Part 2 of the Family Law Act. If the police recognize those rights, the officers will let both spouses enter the home until there is a divorce or another court order preventing it. But if the police will not assist with gaining access to the home, it may be time to start the Family Court Process.
You can get a lot more information about Ontario Family Law issues, including property division, support, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback. But, it is always best to speak to a good family law lawyer.
But the best way to protect yourself, your investment in your home and other things and people that are important to you, is to find out how the law applies specifically to your situation and what steps you should take to get things to work out for you. Contact Certified Specialist in Family Law (and author of the book above), John Schuman, by emailing him, calling 416-446-5869, or using the contact form below. We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).
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