3. Go to court to get an order for exclusive possession

We're married. Who gets to stay in our home if we separate or divorce?
This question has an answer and 3 steps
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3. Go to court to get an order for exclusive possession

If there is a lot of conflict in the home and it is very difficult for you or your children to live in the same home as your partner, you may want to go to court and ask for an order for exclusive possession of the matrimonial home.

This means you and your children can stay in, or return to, your home and your partner isn't allowed on the property. It also allows you to change the locks so that your partner cannot get into the home.

This order doesn't affect who owns the home. You are still not allowed to sell or mortgage the home without your partner's permission.

When deciding whether to make an order for exclusive possession, the court looks at things like:

  • both partners' finances
  • if other suitable and affordable living arrangements can be made
  • if one partner has been abusive towards the other or the children
  • if there are any existing court orders

If there are children, the court looks at the best interests of the child by paying special attention to:

  • how a move might affect the child
  • the child's views and wishes, in some cases

An order for exclusive possession may also include specific responsibilities for the partner who lives in the home. For example, the partner living in the home may have to pay the utilities and be responsible for care of the home.

An order can also say if the other partner is allowed to pick up their personal items from the home or if they are allowed to visit the home. For example, they may only be allowed to go to the home to pick up the children for access visits.

Going to court can be a complicated process and it can take a lot of time. It can be stressful and expensive, but it is sometimes necessary to decide your issues.

There are 3 courts that deal with family law issues in Ontario. But only 2 can give you an exclusive possession order if you don't own your home – the Superior Court of Justice and the Family Court branch of the Superior Court of Justice. The Ontario Court of Justice cannot give you an exclusive possession order.

You can talk to a lawyer who can help you understand what the law says you have to do to protect your rights after you separate and divorce. A lawyer can also explain your options and help you through the process.

If you can't afford to hire a lawyer for your whole case, you can still speak with one for general advice. Some lawyers also provide "unbundled services" or "limited scope retainer" services. This means you pay them to help you with part of your case.

If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.

Reviewed: July 31, 2017

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