Toronto Family Lawyer Ira Marcovitch was recently asked the following question:
Is it legal to kick my abusive husband out of our house until our divorce is settled? The house is in my name and I am the only one paying the mortgage.
Unfortunately, domestic violence and spousal abuse is an all-to-common occurrence and one that often factors into the breakdown of a marriage. While many would think that the answer to this question is a resounding "Yes!", the answer is actually "No". Or perhaps more accurately "Not really."
While many of the same laws apply to married and non-married spouses (such as obligations for spousal support, child support and the ability to enter into domestic contracts), the law regarding possession of the family (or 'matrimonial') home is very different for common-law and married spouses.
While married spouses have an equal right to possess the home (even if only one spouse owns it), common-law spouses do not have any right to possession of the home. A common-law spouse who owns their home can kick their partner out at any time, for any reason (although it's always recommended you speak with a lawyer before doing so!). Married spouses cannot. Until a divorce is granted or a court orders otherwise, both spouses have a right to live in the matrimonial home. While paying the mortgage may have an effect on the division of property, paying the mortgage or utilities does not affect the rights of spouses to occupy the home.
If a spouse takes any steps to kick their spouse out of the home, they can find themselves in deep legal trouble. In some circumstances, a judge may order the offending spouse to leave the home. Judges are very skeptical of those who engage in self-help regarding their home. The case law is clear – you need to ask the court's permission to kick your spouse out of the home (or the police if it's an emergency).
If a married spouse is abusive or makes you fear for your safety, you can ask the Court to kick your husband out – in legal parlance, you can ask the Court for 'exclusive possession.' Under the Family Law Act, judges are directed to consider a number of factors in determining exclusive possession, such as how it would affect any children, the ability of either spouse to find alternate accommodations and any violence committed against the spouse or any children.
Orders for exclusive possession are not common, even in cases where violence is alleged. Litigants face an uphill battle when asking judges to order exclusive possession – judges are hesitant to kick people out of their home for a variety of reasons – they may not have elsewhere to go; if they have to rent, the added cost may put them at a disadvantage in pursuing other rights (such as hiring a lawyer to contest custody); and a general belief that people should only be removed from their home in the clearest of circumstances.
If you think you need to pursue exclusive possession of your home, or are facing a claim for exclusive possession, it is important to talk to a family lawyer right away. These are not simple claims, and ones that should not be addressed without legal advice. The consequences of these claims can be huge – you can be removed from your house. It is important to get good advice and counsel from the outset.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
