You are here
We're married. Who gets to stay in our home if we separate or divorce?
As of March 1, 2021, the term custody has changed to decision-making responsibility. And in most situations, the term access has changed to parenting time. Now, all parents usually have parenting time.
Also, a person who isn't a parent or step-parent may get a contact order to spend time with a child. For example a grandparent can get this order.
Your matrimonial home is the home where you and your married partner lived together before you separated. It can be a house, townhouse, apartment, or co-op unit.
You can have more than one matrimonial home. For example, you may have an apartment and a cottage.
After you separate, you and your partner have:
- an equal right to stay in a matrimonial home that is located in Ontario
- a right to claim a share in the value of a matrimonial home wherever it is — in Ontario or anywhere else — as part of an equalization payment dividing property
This is true even if only one married partner has legal title or owned the home before marriage.
The equal right to stay in the home is not about who owns the home. It is only about who can live in the home. Sometimes this is called the "right to possession" of the home.
This means that even if your partner is the only owner of the matrimonial home, they can't lock you out or refuse to let you into the home without an agreement or court order.
You and your partner's equal right to stay in the home lasts until one of the following happens:
- There is a separation agreement that says one of you can't live there.
- There is a court order that says one of you can't live there.
- You sell your matrimonial home or your lease ends.
- You get divorced: If you get divorced and you aren't on the title to the matrimonial home, you're no longer considered a spouse with an equal right to stay in the matrimonial home. This is an important reason why you might not want to get a divorce until you have an agreement or court order about what to do with the matrimonial home.
If one of you decides to move out, that person does not give up their right to claim ownership of the matrimonial home or to claim a share in the value of the home.
Selling or mortgaging a matrimonial home
You can only sell or mortgage a matrimonial home with the written permission of your partner or with a court order.
Special rules for homes on a First Nations reserve
There are different rules that apply to a home on a First Nation reserve.