It’s quite common these days to see romantic partners living together before (or instead of) marriage. But as compared to married couples – who can look to the Divorce Act and the Family Law Act as clear roadmaps – things can be a bit more complicated for common-law couples who decided to split.
Take the family home, for example. If only one member of a common law couple is the owner of (i.e., has legal title to) the home they share, then the question of which of them must move out upon separation can become surprisingly dicey, especially if there are children in the mix. If they’ve separated amicably, the former couple may be able to agree on which of them stays in the home until all their issues are resolved.
But if they cannot agree, things can be surprisingly complex. That’s because – from the court’s perspective – factors such as the children’s best interests, or the non-owning partner’s contributions to the home’s upkeep, can have a prime bearing on the issue. In the right scenario, they can even trump the title-holder’s rights to continue living in their own home, at least until trial. And if he or she wants to evict their former partner and move back in, it might take a court order to do so.
These were the general background facts in Abdulazia v. El. Zahabai. In that case, the man had been the sole owner of the property he and the woman lived in during their common law relationship. When they decided to separate, the woman stayed in the man’s home with their children, and the man voluntarily moved out. The parties worked on finalizing their split, but differed on some key issues including the duration of their relationship, and whether they were ever legally married.
But soon enough after separating, the man went to court for an order to oust the woman and the children from his home. She was a non-owner with no legal rights, he said, and should be forced to vacate pending trial.
The court reviewed several prior court rulings that featured this kind of scenario. It gleaned the following principles from them:
- Ontario Family courts have the authority to order a non-owning partner to stay in a property post-separation.
- However, this is certainly not automatic, and in fact tends to be the exception rather than the rule.
- The presence of any children of the relationship, and who has primary care of them, will be a factor; so will a parent’s need for a delay moving out so they can prepare to relocate with a child.
- Courts will also consider whether the non-owning spouse has potentially-valid property rights in the home that will be dealt with and confirmed by a court at the upcoming trial.
The court also noted that past cases involving successful bids by non-owners to stay in the home have usually involved:
- Longer common law relationships (in one case, 20 years);
- Clear evidence the non-owner contributed to the home to the point of an unjust enrichment; and
- The non-owner making constructive trust claim that was evidently meritorious – meaning a feasible claim that might see a trial court grant them possession or even ownership of the home.
With these kinds of elements in place, a court is more likely to leave a non-owner in place temporarily, pending a full adjudication of all the claims at a later trial. Importantly, a court that does so is never creating substantive legal rights in the non-owner; rather, it is merely delaying enforcement of the owner’s legal right to possession, until the issues are determined at trial.
With all this in mind, the court returned to the facts in Abdulazia. It ruled the woman did not have any meritorious claims involving a constructive trust. The relationship was relatively short. She had not proven any contribution to the man’s home. Even if the contrary was later established, her moving out now would not affect any legal rights she could establish later.
Also, the woman had merely alleged, without proof, that she and the man had been married at one point – which if true would give her spousal rights to a matrimonial home. But such bald allegations, without more, were not enough to block the man’s claim to have her evicted.
Still, the court took a surprising next step: It ordered the man’s home to be sold immediately, and allowed the woman and the children to remain in the home pending that sale. The woman was ordered to keep the home clean and in good order in the meantime, and to cooperate with listing and showing it to prospective buyers.
The court reasoned that since the man had given no satisfactory explanation of how he could afford both child support and mortgage/upkeep payments on his annual salary, an immediate sale was in everyone’s best interests on the balance of convenience.
Full text of the decision: Abdulazia v. El Zahabi, 2022 ONSC 2591