Matrimonial Home: Laws Relating to Possession

Both married spouses have an equal right to possession of a matrimonial home. In other words, after separation, both spouses have a right to live in the matrimonial home even if title to the home is in one spouse's name alone (s. 19(1) of the Family Law Act). Where only one spouse's name is registered on title, the other spouse's interest can only be enforced against the titled spouse, and it is extinguished once the parties are divorced or once an annulment takes place, unless a court order or separation agreement outlines otherwise (s. 19(2) of the Family Law Act). Furthermore, regardless of the ownership of the matrimonial home and a spouse's right of possession, the court may on application "direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs ... " (s. 24(1)(b) of the Family Law Act). When determining whether to make an order for exclusive possession, courts will consider the following criteria (s. 24(3) of the Family Law Act):

• The best interests of the children affected;
• Any existing orders relating to equalization (or 'family property') and existing orders relating to support;
• The financial position of both of the spouses;
• Any written agreement that exists between the parties;
• The availability of alternative suitable and affordable accommodation; and,
• Violence committed by one spouse against the other spouse or the children.

In the above-noted context, in assessing the best interests of the children, a court considers (s. 24(3) of the Family Law Act):

• The potential disruptive effects that a move to another accommodation may have on the children; and,
• The children's wishes.

If a court awards exclusive possession of the matrimonial home to one spouse, the court may order that the spouse who is living in the home make periodic payments to the other spouse (s. 24(1)(c) of the Family Law Act). If a spouse contravenes an order for exclusive possession, he or she is guilty of an offence and upon conviction is liable to the following sanctions (s. 24(5) of the Family Law Act):

• If it is the first offence, the offending spouse is liable for a maximum fine of $5,000 and up to 90 days in jail; and,
• If it is the second or subsequent offence, the offending spouse is liable for a maximum fine of $10,000.00 and up to 2 years in jail.

If a police officer believes on reasonable and probable grounds that a spouse has contravened an order for exclusive possession, the officer may arrest the offender without a warrant (s. 24(6) of the Family Law Act). This analysis is restricted to married parties and does not apply to common-law spouses.