At the conclusion of a relationship, one party may voluntarily choose to vacate the family home. However, if there is a disagreement regarding who gets to stay in the family home, Ontario legislation permits courts to award exclusive possession of the matrimonial property to one spouse. While this authority does not extend to unmarried parties, there are certain circumstances where an unmarried party who is not named on title may be permitted to continue to occupy a family residence after the parties have separated.
Family Law Act Remedy Only Available to Married Spouses
The Family Law Act (the “Act”) enables a court to award a spouse exclusive possession of a matrimonial home. Section 24(3) sets out the applicable criteria, instructing courts to consider:
- the best interests of the children affected;
- any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;
- the financial position of both spouses;
- any written financial 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.
These provisions are only applicable to married spouses. Currently, there is no statutory authority to award exclusive possession of property to an unmarried party who is not listed on title. Consequently, when a common-law relationship ends, if only one of the parties is named on title, the property owner may allege that the cohabiting party has no legal right to remain in the home.
Long Period of Cohabitation Gives Rise to Further Considerations
The issue of a lengthy cohabitation relationship raises the question of whether the non-titled party must immediately vacate the home.
In the case of Joyce v. O’Neill, the parties were not married but had lived together for 22 years in a property which Mr. Joyce owned. Mr. Joyce argued that there was no basis for his former partner to continue to reside in the home. While no statutory authority applied, there was an open question as to whether an unmarried party could obtain interim possession of a property. In this situation, the Court found that Mr. Joyce’s former partner should be permitted to retain exclusive possession of her long-term home, especially as Mr. Joyce had moved into an assisted living facility and his former spouse had been dependent on him for support.
Non-Titled Party May be Permitted to Remain in the Family Home Post-Separation
While the Act does not provide for exclusive possession of a property for unmarried parties, certain circumstances may allow one party to remain in the home. Generally, property law will determine the untitled party’s rights to occupy a property. For example, if a party claims an interest in the family home by way of a trust, this might allow them to remain in the home temporarily.
In the case of Cass v. Dyke, the applicant claimed exclusive possession of the family residence as an incident of support. The judge decided against the request and instead came to a solution in which the applicant was allowed to continue to occupy the home, however, the respondent was allowed to attend the home during the day while the applicant was at work. The Court agreed that if the respondent were able to sell the house, it would defeat the applicant’s trust claim over the house, and as such, any sale had to await determination at trial.
Remedies for Unmarried Parties Excluded From the Family Law Act
Perks v. Lazaris directly addressed the issue of whether a non-titled party could continue to live in the family home post-separation. In this case, the father sought to end a prior order that allowed the mother and the parties’ children to reside in the family home, despite the father being the only person on title. He argued that a nesting order could not exist between unmarried parties without an order for exclusive possession. The Court determined that exclusive possession was not a prerequisite to the nesting order and that it was not clearly established that a non-titled spouse has no basis to continue living in the home.
Justice McGee identified three possible remedies despite unmarried parties being excluded from the Act’s section 24 protections, including:
- if one party has a pending trust claim there may be grounds for an injunction allowing the party to remain in the house pending the outcome at trial;
- possession of a home might be a form of support under section 34(1)(d) of the Act; and
- a restraining order can enable occupation.
Trust Claim May Delay Owner’s Right to Possession of the Home
Ontario courts have allowed the non-owner to continue to occupy a family home where a party advances a trust claim which could grant them a legal interest in the property. In Souleiman v. Yuusuf, the judge reviewed prior case law which involved the non-title party advancing a constructive trust claim which, if successful at trial, could result in ownership rights over the property. Those decisions delayed enforcement of the titled party’s right to possession on the grounds that meritorious claims should be adjudicated before property sales or evictions occurred.
Where legislation is silent, a non-owner of the family home may be allowed to continue to occupy the home over the property owner’s objections. This usually occurs when the non-title party asserts a trust claim which may result in an ownership stake in the property. However, courts will weigh the merit in any claim, and any award is temporary, pending the outcome at trial.
Contact the Family Law Lawyers at Howie Johnson Barristers & Solicitors in Windsor for Assistance with Property Claims
The experienced family lawyers at Howie Johnson Barristers & Solicitors frequently advise clients on various issues raised in a separation or divorce, including asset division and matrimonial property claims. If you have questions regarding your claim to the family home after a relationship breakdown, call us at 519-973-1500 or contact us online to arrange a confidential consultation.