After a domestic incident, can a family court give one spouse the home?

Yes. Under section 24 of Ontario's Family Law Act, a court can order that one spouse have exclusive possession of the matrimonial home, regardless of who owns it, and violence by a spouse against the other spouse or the children is one of the factors the court must consider. A criminal bail condition that keeps someone away from the home is a separate, temporary order; it does not decide who keeps the home in the longer term.

After a domestic charge, two people usually have the same question from opposite sides. The spouse who was told by the police or a bail court to stay away wants to know whether they will ever get back in. The spouse who stayed wants to know whether they can stay. The answer comes from Ontario family law, not from the criminal case, although the criminal case often shapes the timing and the evidence.

Who has the right to live in the home before any order?

Part II of the Family Law Act gives married spouses an equal right to possession of a matrimonial home (s. 19(1)). A matrimonial home is property in which a spouse has an interest and that the spouses ordinarily occupied as their family residence, or did at the time they separated (s. 18(1)). It does not matter whose name is on the title. Where only one spouse owns the home, the other spouse's right of possession is personal against the owner and ends when they stop being spouses, unless a separation agreement or court order says otherwise (s. 19(2)).

Neither spouse may sell or mortgage a matrimonial home without the other spouse joining in or consenting, a release in a separation agreement, or a court order (s. 21(1)). That protection matters when one spouse is out of the home because of a bail condition: the home cannot simply be sold or borrowed against while they are away.

One limit is important. The rights in Part II use the general definition of "spouse" in section 1 of the Act, which covers people who are married to each other (and a marriage that is void or voidable but entered in good faith). The wider definition that includes unmarried partners who lived together applies to support, not to the matrimonial home. Unmarried partners should get advice on what governs their housing, such as ownership or a lease.

How does a claim for exclusive possession work, step by step?

Exclusive possession is part of a family court case. For Part II of the Act, "court" does not include the Ontario Court of Justice, so in Toronto a claim about the matrimonial home goes to the Superior Court of Justice, whose Toronto family courthouse is at 361 University Avenue.

The criminal and family files run on different tracks. The family court has a duty to consider any criminal order, undertaking or recognizance that is pending or in effect (Divorce Act s. 7.8(2); Children's Law Reform Act s. 33.3). In Toronto, some families with both a domestic charge and a family case in the Ontario Court of Justice are case-managed together in the Integrated Domestic Violence Court; a claim to the matrimonial home itself still belongs in the Superior Court.

What does the court look at?

Section 24(3) lists the factors the court must consider in deciding whether to order exclusive possession:

• the best interests of the children affected;
• any existing orders about family property and any support orders or other enforceable support obligations;
• the financial position of both spouses;
• any written agreement between the parties;
• the availability of other suitable and affordable accommodation; and
• any violence committed by a spouse against the other spouse or the children.

On the children's best interests, the court must also consider the possible disruptive effects on a child of moving to other accommodation, and the child's views and preferences if they can reasonably be found out (s. 24(4)). Every factor is weighed on the facts of the family.

What changes the answer?

• The criminal case. A charge is an allegation, not a finding. The family court considers any criminal order in effect and makes its own assessment of any violence on the evidence before it (s. 24(3)(f)).
• A no-contact or stay-away condition. While a bail condition bars a spouse from the home, that spouse cannot move back in even if a family order would allow it. Any change starts in the criminal court; see how a no-contact condition is changed.
• Other housing. If one spouse has somewhere suitable and affordable to live and the other does not, that weighs in the decision (s. 24(3)(e)).
• Agreements. A written agreement between the spouses is a factor (s. 24(3)(d)), and a marriage contract cannot take away a spouse's Part II rights (s. 52(2)).
• Ownership and division. Exclusive possession is about who lives there now; who owns the home and how its value is shared is part of equalization. Our property division page explains that side.
• A restraining order. A family court restraining order can keep a person a set distance from named places, including a residence. Our page on restraining orders, peace bonds and bail conditions compares them.

What happens if someone ignores an exclusive possession order?

Unlike some family orders, an exclusive possession order has its own penalty in the Act. Contravening it is an offence (s. 24(5)), and a police officer may arrest without a warrant a person they believe on reasonable and probable grounds has contravened it (s. 24(6)).

If the same conduct also breaches a criminal bail condition, that is a separate charge under the Criminal Code. Our page on penalties for breaching orders and conditions sets them side by side. Orders made under Part II can also be registered against the land (s. 27).

For example: two spouses, one home

This is a hypothetical, not a real client or a result. A married couple live in a condo in North York registered in the husband's name. After a 9-1-1 call, the husband is charged and released on conditions that he not contact his wife or attend the condo. The wife and their two school-age children stay in the unit.

The wife starts a family case in the Superior Court and brings a motion for temporary exclusive possession, child support and parenting orders. She files the release order with her materials. The husband argues that the condo is his property. Under section 19, title does not decide possession, and the court considers the children's schooling, the cost of other housing for each spouse, the support picture and the allegation of violence. A temporary order may give the wife possession and set who pays the condo fees. Months later, if the criminal charge resolves and circumstances change, either spouse could ask the court to vary the order under section 25.

Nothing in this example would let the husband return to the condo while his bail condition is in force, even if the family court ruled for him.

What mistakes do people make?

1. Assuming the owner decides. Ownership does not settle possession of a matrimonial home (s. 19(1) and s. 24(1)).
2. Assuming the bail condition decides. It controls only the criminal side and ends with the case.
3. Selling or mortgaging without consent. Disposing of or encumbering the home without the other spouse's consent or a court order can be set aside (s. 21(2), s. 23).
4. Going back to collect belongings without arrangements. If you are under a stay-away condition, retrieval has to fit the order. The family court can also order what happens to the contents (s. 24(1)(d)).
5. Waiting too long to start the family case. Temporary orders exist so the household is not left uncertain for months (s. 24(2)).
6. Leaving the criminal lawyer out of the family case. What is said in an affidavit in family court can matter in the criminal case, and the reverse.

What can you do this week?

1. Get copies of the release order or undertaking and any family court orders, and read the stay-away terms.
2. Make a list of who pays what for the home: mortgage or rent, condo fees, taxes, utilities.
3. Write down the children's schools, activities and care routine; the court looks at disruption (s. 24(4)).
4. Note what other housing each spouse realistically has.
5. Do not sign anything about the home, and do not sell or mortgage it, without advice.
6. If you are more comfortable in Farsi, say so at the start. Ontario provides court interpretation in any language in family court when a party qualifies for a fee waiver, or when the court orders it; French interpretation is available in all family matters.
7. Speak with a lawyer who can see both the criminal and the family file.

Frequently asked questions

Is exclusive possession permanent?

No. The court orders possession "for the period that the court directs" (s. 24(1)(b)), and an order can later be varied, suspended or discharged after a material change in circumstances (s. 25(1)).

Can the spouse who stays be ordered to pay the other spouse?

Yes. The court can direct the spouse given exclusive possession to make periodic payments to the other spouse (s. 24(1)(c)), and can order either spouse to pay for repairs, maintenance and other liabilities of the home (s. 24(1)(e)).

Does it matter if we rent rather than own?

A matrimonial home is property in which a spouse has an interest that the spouses ordinarily occupied as their family residence (s. 18(1)). Whether a particular tenancy fits that definition, and what the landlord's rights are, needs advice on the facts.

Can I get an order quickly if I am afraid?

The court can make a temporary order on a motion (s. 24(2)). If you are in immediate danger, call 9-1-1.

Do common-law partners get exclusive possession?

Part II of the Family Law Act applies to married spouses as defined in section 1. Unmarried partners can still seek a family court restraining order against a person they live or lived with (s. 46), but possession of the home depends on other rules.

Will the family court see the criminal file?

The family court must consider any criminal order or proceeding that is pending or in effect (Divorce Act s. 7.8(2)). What evidence from the criminal case is used, and how, is a strategic question for your lawyers.

What if my spouse took the firearms out of the home?

Seizure and prohibition of firearms after a domestic call are criminal law questions with their own deadlines; see what happens to firearms after a domestic call.

Getting help

A charge and a family case at the same time pull in different directions, and the home is often where they collide. For the criminal side, start with our page on domestic violence charges in Ontario; for separation itself, see divorce and separation in Ontario. Gambriani Law PC acts in criminal and family matters, in English and Farsi, from Suite 1901, 5000 Yonge Street in North York.

This page is general information about Ontario law, not legal advice about your situation. If you are in danger, call 9-1-1.