It may seem unfair for a spouse to insist on using his or her spouse’s family cottage, even after separation. But, under Ontario Law, doing so can be a legal right.
In Ontario, the rights of married couples in relation to the matrimonial home are governed by Part II of the Family Law Act. To access the rights in Part II, spouses have to be married and the property in question must be a ‘matrimonial home’, which means that one of the spouses has a legal interest in the property and the property was ordinarily occupied by the spouses on the date of separation. Except where they have made special arrangements (which both spouses will know about), spouses can have more than one matrimonial home. Frequently, where the entire family has enjoyed the cottage, the cottage is a matrimonial home as well, so all the rules for matrimonial homes apply to it as well. You can watch the video below that explains in more detail what a matrimonial home is and what your rights are in relation to it.
Under s.19(1) of the Family Law Act, each spouse has an equal right to possession of the home. That means that your spouse cannot unilaterally kick you out of the house or the cottage, even if they are the sole owner. This extends to changing locks, removing belongings, etc. It also prohibits straggles like selling the house or increasing the mortgage to force the other married spouse out. A spouse is prohibited from employing any of these self-help measures; they can only do it by order of the Court. Under s. 24 of the Family Law Act, the Court has the power to deal with the property contained in the home or cottage, such as by making orders for the preservation of the property of the delivery of the property to a person.
If your spouse wants to evict you or prevent you from having possession of any matrimonial home, they will have to bring a motion for an order for exclusive possession of the matrimonial home under s.24(1) of the Act. If the cottage is a matrimonial home, then these laws apply to it and your ex has to bring a motion to stop you from using the cottage, otherwise you have the same rights as your spouse to use it. The Criteria for making these orders are contained in s.24(3) of the Act. An order for exclusive possession is an extraordinary remedy, and is only granted in very clear cases. Judges do not like to kick a spouse out of their house unless circumstances compel it, such as where there is clear evidence of abuse or where it is in the best interests of the parties’ child(ren) that the court make such an order. Where the matrimonial home is a secondary property (a family can have more than one matrimonial home), such as a cottage, a judge may be less concerned about such an order ‘putting you out on the street’, your spouse would nonetheless have to convince the court that such an order is necessary. Since judges may be less concerned about kicking a spouse out of a vacation property because that spouse has someone else to live, it is wise to avoid causing unnecessary conflict over using the cottage - especially if the kids are exposed to that conflict.
For your spouse to bring a motion for an order for exclusive possession, your ex will have to start a court proceeding. There are no legal, out-of-court means to force a spouse to give up possession of the matrimonial home (except for family arbitration where the arbitrator acts like a judge). You should listen to these podcasts (Part I, II, III) that explain the family court process in Ontario and what to expect when litigating a family law issue. Watch the video below on the family court process. Your spouse may start a proceeding and then bring the motion on notice to you or, if he or she believes that circumstances are urgent, he or she may start a proceeding and bring the motion immediately without notice to you. If your spouse has contacted a family law lawyer, it is best that you do so as well, and sooner than later. A good family law lawyer will be able to explain your rights and obligations to you and how best to protect yourself through the end of your relationship.
If use has illegally changed the locks, you can ask the Court for an order for possession of the cottage so you can use it. In circumstances where one spouse is clearly denying the other spouse the right to possess the house, a judge may order that you have exclusive possession of the cottage, as there is no evidence that you (unlike your spouse) would prevent him or her from possessing the house. You should speak to an experienced family law lawyer right away, as it is important to make these claims as they arise and not wait to go to court.
To learn about other ways that cottages can be used, and even become owned by a spouse as a result of divorce, check out the video below that explains how Ontario Family Law applies to cottages.
To learn even more about your rights and obligations regarding the cottage, get a copy of this best-selling as a , or as a $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac. You can also use the search on the right to find lots more articles about marriage and divorce. This site has hundreds of pages with important family law information to help you protect you rights and to keep you out of trouble.
However, your best option to preserve and protect your rights to a cottage, or any of your other rights in separation and divorce, is to discuss the specifics of your particular case with a top family lawyer who can then give you advice specific to your situation. Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5847, 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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