Changing The Locks in Ontario: The Law on Separated Spouses, Possession & the Matrimonial Home
Changing The Locks
One of the most common questions is whether the spouse who remains in the matrimonial home after separation can change the locks in order to exclude the other spouse.
In Ontario, the short answer is: No.
If the now-separated married couple were living in the matrimonial home, and one of them has moved out, neither the Family Law Act nor other legislation entitles the remaining spouse to change the locks. This is because under that legislation the matrimonial home is afforded special status: both spouses are expressly granted an equal right to possession of it. This right of equal possession subsists even after separation unless or until:
1) there has been a separation agreement reached between the parties; or
2) a court order has been granted to establish that one of the spouses is entitled to what is known as “exclusive possession” of the matrimonial home pending a family trial. (And note that once exclusive possession has been granted to one of the spouses, he or she obtains the sole right to live in the home, regardless of who owns legal title.)
Unless one of these mechanisms is in place to override what is otherwise each spouse’s equal right to stay in the home, neither can formally lock out the other. In fact, both spouses will have a right to actually live in the home until a resolution on possession of the home is reached. For obvious reasons, however, this is usually untenable because most separations occur under very high-conflict, emotional-charged circumstances.
But even if one spouse has moved out, he or she is not entitled to come-and-go at will. Rather, there must be adequate and reasonable notice given of any intention to return, for example to retrieve any personal property that has been left behind. Similarly, if a court order for exclusive possession has been obtained in favour of one spouse, it will usually be a term of that order that the other spouse can periodically re-enter for specific purposes, with notice in advance. In this context the court may also order the locks to be changed, if the circumstances between the parties warrant it.
Finally, it is important to note that the order for “exclusive possession” is merely that; it does not give the remaining spouse the right to sell or dispose of any of the furniture or other belongings until all of the separation and divorce issues, including equalization of net family property, have been fully resolved by a court.
Some Common Questions About Changing the Locks on Your Home
Can the spouse who remains in the matrimonial home after separation change the locks in order to keep their spouse out?
- No, the law does not entitle a spouse to change the locks
- The family home is given special status as the “matrimonial home”
- Under the law, both spouses are granted equal right of possession to the home until an agreement or court order is in place
When does the right of equal of possession to the family home end?
- If there has been a separation agreement signed by both parties
- If a court order has been granted establishing that one of the spouses is entitled to “exclusive possession” of the matrimonial home
- Exclusive possession is typically a temporary condition granted until a trial can settle matters on a final basis
- When an order for exclusive possession is made, one of the spouses is granted the sole right to live in the home regardless of the names on title and that spouse can then change the locks
When can I get a court order to change the locks (exclusive possession)?
- If the conditions in your home have created an atmosphere in which cohabitation is intolerable and this condition is being caused on purpose by one spouse.
- Includes scenarios in which there are crimes being committed or activities which are dangerous to others in the home taking place in the home caused solely by one spouse.
- Also includes scenarios in which the home is being damaged and or purposely devalued.
Can I change the locks if my spouse agrees?
- Yes if your spouse agrees then you are allowed to change the locks
- It is important as in all parts of family law to get this agreement in writing to avoid them later going back on their word and claiming that you are the one who is acting in bad faith
- It is always a good idea to try to see if your spouse will allow you to take this action before pursuing self-help remedies.
Children and Changing the Locks:
- You cannot prevent your spouse from seeing their children by changing the locks
- You never have the right to make a unilateral decision regarding your children until a separation agreement or court order is in place
- The court will often base a decision on whether to grant a party the ability to change the locks based on the best interests of the children
- If you have children in the ho me often the best argument for changing the locks and exclusive possession of the home is that your spouse is exhibiting behavior which is dangerous or disadvantageous for your children
Exclusive Possession – Can an Excluded Spouse Enter the Home?
- It depends. Usually when an order for exclusive possession is made, the court order will also include a term that the other spouse can periodically enter or enter on a specific date for a pre-specified purpose.
- Re-entry may be for purposes such as retrieving belongings, or to exercise custody or access
- This type of re-entry usually requires notice given in advance
- Exclusive possession does not give one spouse the right to sell or dispose of the other spouses property – it is a temporary arrangement to give the parties time to finalize their separation
Locks and High Conflict Situations
- Regardless of the situation in the home, both parties have a right to live in the home until the separation has been resolved
- If one spouse has moved out due to conflict, they may not be entitled to return to the home whenever they wish
- When a spouse moves out they must provide adequate and reasonable notice of any intention to return to the home
What can be Done When a Spouse Refuses to Leave the Home?
- Often a spouse does not want to leave the house without the children
- One possible short term solution is a “nesting arrangement” in which the spouses take turns living in the matrimonial home with the children and move out when it is not their turn
- This kind of arrangement can be very successful especially if both parties have family living nearby which they can stay with on a regular basis
Common Law Relationships and Changing the Locks
- If you are in a common law relationship and the house is solely in one person’s name then that person can change the locks and evict you at any time
- You do not have rights as a tenant under the residential tenancy act due to exceptions to the law which almost always apply to common law spouses.
- If you do evict your spouse from your home in a common law relationship you should expect this to reflect badly upon you at court when it comes to determining other issues resulting from the breakdown of your marriage
Changing the Locks and Occupation Rent
- If you do change the locks and your spouse continues to help pay the mortgage, you may be liable for occupation rent
- This means that you are living in a home which they help pay for and therefore you owe them rent as a result of their contribution to the home, which you have deprived them of without their consent
Should I get legal advice regarding changing the locks?
- Yes you should get legal advice before you change the locks, especially in the case of a common law marriage.
- Often the time after separation is very difficult and complex and what you may have interpreted as an agreement to you changing the locks may not actually have been an agreement
- Moving to change the locks preemptively could damage your position in a court case
10 Things That Make the Matrimonial Home Unique
In Ontario, once a marriage ends the property-division provisions of the Family Law Act are triggered and property is divided essentially in equal portions between the spouses, subject to certain rules and exceptions. One of those exceptions relates to the matrimonial home.
There are several aspects that make the matrimonial home unique.
1. The “matrimonial home” is strictly defined by the Act.
The term refers to any residence that is owned and “ordinarily occupied” by the spouses and their family on the day of separation. Provided it is a family residence, this can include any type of housing including condominiums and mobile homes. Note that there can be more than one matrimonial home: as long as it meets the legislative definition, even a second home such as a frequently-used family cottage can constitute a matrimonial home which is subject to the Act’s special rules.
2. Original ownership of the home becomes irrelevant after marriage.
If a spouse brings a home with them into the marriage and that home becomes the family residence, then the law deems it to be the matrimonial home, even though that spouse held title and was the home’s registered owner prior to marriage.
3. Once a home is designated a matrimonial home, both spouses are equally entitled to possession of it upon separation.
Once the spouses separate, neither of them can legally exclude the other from the matrimonial home, no matter who owned the home prior to marriage.
4. The matrimonial home is treated differently when dividing assets on separation.
Under the Family Law Act, the full value of a matrimonial home must be shared upon separation. This forms an exception to the normal rule that applies to the division of other matrimonial property, i.e. that on separation each spouse is entitled to deduct the marriage-date value of any property he or she brought into the marriage.
5. A matrimonial home can only be sold if both spouses consent.
If one spouse attempts to sell the home without the consent of the other, then any purported purchaser will take the property subject to the legal interest of the second spouse, or the transaction may be set aside by a court in the right circumstances. This same rule applies to an attempt by one spouse to mortgage or otherwise encumber the home without the knowledge or consent of the other.
If a consensus cannot be reached, then either spouse may apply to the court for an order that the home be sold.
6. Special status.
The matrimonial home has special “protected” status under Ontario law. As such, there are certain things that spouses can and cannot do. Most notably, one spouse is not allowed to unilaterally do any of the following, without the other spouse’s consent:
• Lock the other spouse out of the matrimonial home;
• Sell the home;
• Mortgage or re-mortgage the home.
7. Court can make Orders.
Depending on the nature and objective of the family litigation, an Ontario court is entitled to make an Orders that can affect your spousal rights to the matrimonial home. The court’s powers in this regard arise under the authority granted to it pursuant to the Ontario Family Law Act, the Family Law Rules, and the Courts of Justice Act.
8. Scope and nature of court Orders.
There are a variety of Orders that a family court can make in connection with the matrimonial home, including an Order that only one spouse is entitled to be in possession of (i.e. live in) it, and an Order that one spouse may sell, mortgage or encumber it.
The last type of Order may become necessary in a case where (for various reasons) it is prudent for the home to be sold, mortgaged or otherwise encumbered, or where it makes sense in all the circumstances that one spouse has possession, but where the spouses cannot agree. The court in such cases has the power to make the necessary Order.
9. Mandated considerations.
Needless to say, courts don’t take their powers lightly; whenever a court is poised to make an Order that deprives one spouse of his or her rights or interest in the matrimonial home, the court will consider a broad array of well-established factors and considerations. For example, if a court is considering making an Order giving one spouse exclusive possession of the matrimonial home, the court is obliged under the Family Law Act to take into account the following:
• The best interests of the children who may be impacted by the order. Under this heading, the court must consider 1) the possible disruptive effects on the child of a move to other accommodation; and 2) the child’s views and preferences, if they can be reasonably ascertained.
• Any existing court Orders relating to family property, including existing Orders for support;
• 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 children.
10. Other rights not suspended.
Finally, the fact that a family court might be entitled to make an Order in connection with the matrimonial home does not mean that other litigation has to cease; a third party (i.e. not either of the spouses) might have rights in connection with a matrimonial home that can be enforced as usual. To give the most common example, there may be a mortgage on the home, which the bank can realize upon if it goes into default.