Can My Spouse Kick Me Out of Our Matrimonial Home?

The answer to this question depends on whether you are legally married to your spouse or not. Married spouses have special rights with regard to their “matrimonial homes.” Common-law spouses do not have matrimonial homes, they only have “family homes” and they have no special rights to their homes.

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 (that spouse owns it, rents it, or has a right to own it) and the property was ordinarily occupied by the spouses on the date of separation. 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 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, even if they are the sole owner. This extends to changing locks, removing belongings, etc. It also prohibits struggles 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, the Court has the power to deal with the property contained in the home, such as by making orders for the preservation of the property or 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. 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 makes 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.

For your husband to bring a motion for an order for exclusive possession, he 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) where I explain the family court process in Ontario and what to expect when litigating a family law issue. Watch the video on the family court process below. He may start a proceeding and then bring the motion on notice to you or, if she believes that circumstances are urgent, 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.

As your spouse has illegally changed the locks, you can ask the Court for an order for possession of the house. 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 him) would prevent him 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. 

If you are in a common-law relationship, read this page for information about your rights with respect to your family home.

To learn even more about your rights and obligations regarding the matrimonial home, you may want to get a copy of this easy-to-understand book on the basics of Ontario Family Law as a paperback, 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.

If you are being threatened with being kicked out of your home, especially if those threats are accompanied by other threats or violence then you need to speak with a good, experienced, family lawyer immediately. A family lawyer will protect your rights and make sure you do not get into a bad situation that will be difficult and expensive to correct. 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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