When a relationship ends, your right to stay in the home that you shared with your partner depends on whether you were married or a common law couple. Married spouses have an equal right to possession of the matrimonial home. For common law couples, the family home belongs to the party that owns it, and a non-titled spouse could be trespassing if they refuse to leave. However, courts have found alternate remedies that can enable a non-owner to continue to reside in the home. These decisions factor in a range of considerations, including whether the parties have children residing in the house. Courts may permit a non-owner to continue to reside in a house if an order giving the titled party possession could negatively impact the children’s welfare.

Non-Owner Who Refuses to Leave Home May be an Unlawful Resident

In Anness v. Kovacs, the property was in the applicant’s name alone. When the relationship ended, the applicant claimed that the respondent had no right to remain in the home and should not benefit from unlawfully remaining in the home and refusing to participate in the proceedings. The applicant argued that relief could be granted on the basis that the respondent was trespassing, which could justify the removal of a non-owner unmarried spouse. He cited a previous decision which found that trespass to land “is committed by entry upon, remaining upon or placing or projecting any object upon land in the possession of the plaintiff without lawful justification. To be actionable, the defendant’s act must be voluntary, but it need not be intentional.”

The judge accepted that the applicant had clearly established the grounds for trespass and was entitled to possession of the residence that he solely owned. However, the applicant had earlier agreed that the respondent could remain in the residence as he did not believe it was in the best interests of their child, who had her primary residence with the respondent, to have to move from the home in December. For the same reasons, the judge did not believe the respondent should be ordered to leave the home on short notice as that would also negatively impact their child. However, the Court ordered the respondent to vacate the home.

Alternative Remedies can Enable Spouse to Remain at Home

In Anthony v. Oqunbiyi, there was a debate as to whether the parties were married. The judge concluded that the parties were not married and, consequently, the property in question was not a matrimonial home. On this basis, the applicant sought an order for the respondent to vacate the property as it was registered in his name alone. The judge noted that in numerous cases, non-owners have not been ordered to leave a residence as “claims from which the right to possession might flow should be adjudicated at trial before eviction is ordered.” Even if the non-owner has been unsuccessful in presenting trust claims or a claim of unjust enrichment based on contributions made to the property, eviction of the non-titled party might not be ordered.

The judge noted that in the case of Abdulazia v. El Zahabi, the non-owner was not ordered to leave on the basis that she should continue to live in the residence with her children pending the sale of the property. Here, there was conflicting evidence regarding each party’s financial contributions to the property. The respondent alleged she had been paying monthly mortgage costs, and the judge anticipated she would be claiming an interest in the property. Justice Shaw ultimately declined to order the respondent from the property on the basis of trespass. There was some justification for her remaining in the property as the applicant had acquiesced to her residing in the property for years, which was at “odds with a claim she is trespassing, particularly if she has been contributing to some degree to the carrying costs of the property.”

Common Law Spouses Not Protected by Family Law Act

There may be occasions when it is necessary to prohibit the parent on title from attending at a home where their children reside if the party’s presence creates a risk of harm to the children or there is a need to protect them from the parents’ litigation. This was the outcome in Perks v. Lazaris, where the family home was registered in the father’s name alone. The father sought to have his common law spouse and their 24-year-old daughter evicted from the residence. However, he agreed to allow the parties’ 10 and 12-year-old sons to remain in the home.

The judge noted that when a spouse may not be registered on title to the family home, it does not mean that they have no basis to continue to live in the house post-separation. While common law spouses are excluded from the Family Law Act’s protections pertaining to possession of the matrimonial home regardless of ownership, other remedies might apply. Justice McGee identified three of these remedies, namely:

  1. A common law spouse might have a trust claim allowing them to remain in the home pending the outcome of the claim at trial.
  2. Some cases have held that possession of the home can be a form of support.
  3. In appropriate cases, a restraining order may have the effect of enabling possession of the home.

Court Restricts Owner’s Access to Home to Protect Children From Conflict

In this case, the parties had a nesting schedule that enabled the children to continue to live in the house, with the parents rotating into the home according to a parenting schedule. This allowed the mother to continue to occupy the house as a temporary arrangement until trial. The mother believed the arrangement was a good compromise until her trust claim could be determined. However, the father found the arrangement distressing and disliked the weekly transitions from the home. He did not want to share his house and could not understand how the mother was entitled to live in the home with the children.

Justice McGee explained that while nesting orders can only be temporary because eventually there will be a separation of family finances, they “are the ultimate child-centred parenting schedules. They minimize, if not eliminate, transitions for children between their parents’ care.” However, the father had a long list of grievances and sought to terminate the nesting order. He was also inserting the children into the parties’ conflict. Interviews with the children by a family service worker disclosed that the father made the children listen to his opinion of the mother and pressured the children to take his side in the family litigation.

It was evident that the father breached the order to protect the children from the parties’ conflict. The family service worker determined that the children felt caught in the middle between the conflicting parents and recommended that the terms of the current order be changed to reduce the children’s exposure to the conflict, which could limit their risk of emotional harm. The judge reiterated that the children’s well-being was the priority, and as they were deliberately being inserted into the conflict by the father, the nesting plan was terminated. The judge concluded that the father’s actions ended a plan that could have worked well for the children and showed an inability to separate his children’s interests from his own. The result was that the father was prohibited from accessing the home and could only have the children in his care away from the family home.

Deciding Possession of a Solely Owned Home is Fact Specific

In Ontario, parties must be married spouses for a home to qualify as a matrimonial home. This means a sole owner may seek to evict a non-owner when a relationship ends. However, courts have identified alternative remedies that might enable a non-titled party to continue residing in a property. Importantly, these decisions are often fact specific.

Contact the Family Lawyers at NULaw in Toronto for Advice on Property Rights Following a Separation

Whether you are contemplating a separation or have stated the process and require a separation agreement, the experienced family lawyers at NULaw will assess your circumstances and advise you on your rights relating to property division and support claims. If you have questions about your property rights following a common law separation, contact us online or call us at 416-481-5604 to book a confidential consultation.

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