Should a Spouse Leave the Home on Separation?

Some separations are characterized by nastiness, strong emotions, and even violence. However, a spouse or partner does not have to physically move out of their home to separate. Couples can live in the same house, condo, or apartment for a long time. But, when there is a lot of conflict, that can be very difficult, especially when there are children around. At the same time, there can be some serious legal repercussions from moving out of the home after separation. Moving out may not be necessary or advisable for you, or your children.

Deciding Whether to Move Out When You Have Kids

One of the most difficult situations after separation is when the family home is full of conflict, and there are kids. Can a parent just leave and take the kids, or must a parent leave them behind? What legal impact does it have on a parent to leave their kids behind? Separated parents continuing to live in the same home presents all kinds of challenges and difficulties. The research shows that their parents’ divorces do not harm kids. However, kids are harmed by being exposed to fights between their parents. This is such a concern that Canadian and Ontario Family Laws impose a duty on parents to protect their children from conflict after separation. It seems that the law requires one parent to move out after separation so the kids will not see the fighting. However, the law is much more complicated than that.

Section 20(4) of the Children’s Law Reform Act says that where the children live with one parent with the implied consent or acquiescence of the other, the entitlement to make parenting time decisions is suspended for that other parent who is no longer living with the kids.

What that means is when one parent moves out of the home, and leaves the children behind to continue living in their home, the parent who moves out can no longer make parenting decisions for the children. That can be a big give, especially for a parent who is actively involved in the children’s lives.

Section 20(4) specifically says that moving out does not legally impact a parent’s entitlement to parenting time. But the reality is that the kids are in the home with one parent. That can be a problem in high conflict separations. It is those nasty separations where moving out protects the kids from conflict. However, in those high-conflict separations, the parents in the house frequently act like “gatekeepers” and control when, and in bad cases, the children get to see the parents who moved out.

In nasty situations, where one parent moves out to avoid unbearable conflict, and then the parent in the house excludes them from the children’s lives, the court can intervene to fix things. But the court is very expensive and the delay to get a court date can be several months. That delay can cause a serious interruption in the parent-child relationship. A long delay can even make the judge think the parent who left needs to be slowly reintegrated into the children’s lives.

On the other hand, one parent moving out and taking the kids out of their home with him or her will immediately create bigger problems. Judges do not like parents who engage in self-help solutions to get an advantage when it comes to their kids. Except in cases of extreme physical or sexual violence directed toward the kids, moving out with the kids looks like kidnapping; or at the very least a tactical move to deprive the children of a relationship with the other parent. Taking deliberate action to keep the kids away from the other parent can have very serious legal consequences. Those consequences can include the possibility of losing any right to have contact with the kids. Judges view anything that looks like a kidnapping as urgent and may allow an emergency motion to intervene very quickly. However, a judge might not intervene quickly for a parent who voluntarily left the children’s home.

To avoid those problems, the best thing is always to have an agreed-upon written parenting plan before moving out of the children’s home. That parenting plan should set out when the children will be with each parent, and who will make parenting decisions. Having a parenting plan is important even if those arrangements are only on a temporary basis until things settle down and there is more time to work things out. Those plans make sure the parent who leaves the home stays in the lives of the children.

There are lots of parenting professionals and parenting mediators who help parents who out these plans after separation. Family Lawyers can also create those parent plans, or help parents come up with other alternatives to make sure they do not fall out of their children’s lives after separation. If things are getting nasty in the house, it is a VERY good idea to speak to a good family lawyer before you take any steps or any decisions. Call 416-446-5847 to make an appointment with one of our family lawyers who is an expert on these issues. Additionally, you can find out more about these issues in this book ($9.99 eBook).

Things To Consider About Moving Out When the Separated Spouses Don’t Have Kids

Even if there are no kids, or the parenting arrangements are worked out, there are other legal considerations before moving out of the home.

When spouses are married, neither one can kick the other out of the house. Married spouses also cannot do anything that would result in the other spouse being kicked out of the house. Married spouses have matrimonial homes. Common law spouses do not. That is an important difference between being married and common law. Under section 19 of Ontario’s Family Law Act, both married spouses are equally entitled to live in the matrimonial home or homes after separation. It does not matter who is on title, or who paid for the property. Only a family court or criminal court order can force one married spouse out of a matrimonial home.

When a married spouse cannot afford to get alternate accommodations, there is no legal reason for that spouse to automatically move out. Further, moving out may not be practically possible. It can make better financial sense for a spouse who is paying for the matrimonial home to stay in it. That way, the spouse avoids the costs of carrying two homes.

There may be other reasons why it is much more convenient for a spouse to stay where he or she is – for work, activities, school – or the children’s activities or school.

Again, it may be better to get financial and other issues sorted out before leaving the matrimonial home. That can ensure everyone has the money and other resources they need to live and nobody ends up struggling for someplace to live.

Things are a lot different for unmarried and common-law couples.  When unmarried partners split up, the one who owns the home can insist the other one leave it. Obviously, it can be harder to get rid of your ex if you both own the home. The law presumes that separated owners will sell the home on the open market unless they can agree for one to buy the other out. But there are no special considerations for unmarried people living together in an intimate relationship instead of a platonic relationship. 

That can make things very difficult when there are children in the relationship. If the partner who owns the home is kicking everyone out, or kicking out a partner to get them away from the kids, it is time to see a lawyer about an urgent court application. But, family court is NOT for everyone and it is a bad choice for some separated spouses and parents. So, unmarried couples, especially ones with kids, may want to seriously consider a cohabitation agreement. Those agreements can avoid difficulties that can arise due to unmarried partners not having any rights to a home they do not own.

There is one caveat to that. Where the partner who is not on title has made substantial contributions to the property, it may be possible for that partner to claim to be a joint owner even though he or she is not on title. Those cases are complicated, so it is necessary to discuss the situation with a good family law lawyer. Another consideration for common law couples, who have lived together for three years or who have children, is the financial consequences of kicking one partner out. If one partner gets thrown out and needs money for accommodation, that is a situation where there can be a good claim for spousal support to meet that need for housing. A spouse who is unceremoniously tossed on the street may have a spousal support claim that he or she would not have had if the breakup had not caused sudden intense financial distress. The cost of a long-term spousal support obligation is one that spouses and partners may want to think about before tossing an ex out the door.

Of course, there can also be issues about the stuff in the house. Check out the video on throwing out your ex’s stuff if the stuff in the house is a concern.

Separations are a bad time to make critical life decisions. People can make emotional decisions that make no sense in law or in light of their circumstances. Those decisions can have long-term negative implications. They can hurt the kids. It is much better to make big decisions when everything is calmed down. So, while throwing someone out of the house, or walking out and leaving the family behind, may seem like a good idea, it can have a lot of serious repercussions. Before you make any big decisions after separation, read a copy of this $9.99 eBook on Ontario Family Law (paperback also available), or call 416-446-5847 to make an appointment to speak with a top family law lawyer. Our lawyers are experts in all family law issues.

To get the best advice, specific to your situation, you should speak to a family lawyer. Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many parenting cases. To contact John call 416-446-5847, email him, or fill out the form below. You can use the same form to comment on this page.