Disclaimer: This article aims to provide educational information on exclusive possession. It is not intended to serve as legal advice. Consult with a lawyer and exercise your discretion before taking action based on the information provided in the blog.
Divorce is a challenging and emotionally charged process. It can take months to agree on how you will divide your property and co-parent your children.
A lot of friction can come into play when discussing the matrimonial home. It is usually your biggest asset, and you may wonder if you will continue to live there or sell it. While making these decisions, who actually lives in the home? Can you remove your spouse?
This article will discuss exclusive possession and what it means for you. First, let’s answer one of the most common questions that we are asked: “Can I change the locks?”
Can I change the locks?
No. You absolutely cannot change the locks unless a court order grants you exclusive possession.
Changing the locks without the other party’s consent or a court order can be seen as a serious violation of their rights and may have serious legal consequences. It can weaken your case down the road and will make any sort of settlement more difficult.
What is exclusive possession?
Section 19 of the Family Law Act grants both spouses equal rights to live in the matrimonial home, regardless of who actually owns the property. However, under Section 24, you can request an order for exclusive possession. This means you would have the sole right to live in the family home for a period directed by the court.
It is a remedy only available to legally married spouses under the Act. That means this does not apply to common law relationships. Ontario does not recognize the concept of a matrimonial home for unmarried couples.
It also means you can seek an order while separated but not divorced. Once you have a certificate of divorce, you cannot claim this remedy.
How do I get an order for exclusive possession?
If you would like to gain exclusive possession of your matrimonial home, you must file a motion asking for an order from the court.
The court will examine several factors, as outlined in section 24(3) of the Act. These are:
- the best interests of your children (if applicable);
- any existing orders or other enforceable support obligations;
- both of your financial positions;
- any written agreement between you and your spouse;
- what kind of suitable and affordable housing is available; and
- if your spouse committed any violence against you or your children.
When looking at the best interests of your children, the courts will explore how disruptive a move will be for them, as well as their views on the matter.
If you seek to remove your spouse from your shared home, it is up to you to prove that it is a practical impossibility or dangerous to continue living together. The courts do not take this remedy lightly, as it forces your spouse to leave your shared home and find somewhere else to live.
Ownership of the property
Granting exclusive possession does not change who owns the home. It only addresses the issue of who can live in the house during the divorce proceedings. The final division of property, including the matrimonial home, is typically decided separately by the court or through negotiation and is based on various factors.
This means that you cannot sell the house on your own, add a mortgage or try to exclude your spouse from any financial benefit from the property. Exclusive possession is a temporary measure that aims to provide stability and protect both of your interests until a final decision is made regarding property division.
Your responsibilities
If granted exclusive possession of your home, you are responsible for maintaining the property and adhering to any court orders or conditions set by the courts. These responsibilities may include the ongoing financial obligations associated with the property, such as mortgage payments, property taxes, utilities, and maintenance costs.
Understanding your rights and responsibilities during your divorce
At Plat Simionati LLP, we empower our clients to understand their rights and responsibilities during the divorce process. We recognize that divorce can be challenging and emotionally charged, and we are here to provide you with the guidance and support you need.
We are here to provide the necessary support, answer your questions, and advocate for your best interests. With our expertise and compassionate approach, we will help you navigate the divorce proceedings, including the issue of exclusive possession, and work towards a fair and satisfactory resolution.
Contact us today to determine how you can move forward with your family law matters.