Matrimonial Home: Should I stay or should I go?

Clients who are going through a separation often ask me whether it is OK to move out of the matrimonial home before all the issues arising out of their separation have been resolved. Sometimes tensions are high and the client believes some physical distance is required in order to keep the peace.  Sometimes the client is emotionally hurt and cannot stand to continue living in the same house as his or her former spouse. Sometimes the client is simply anxious to begin a “fresh start” away from the former spouse. Whatever the reason, there are certain issues that should be given careful consideration prior to making this decision.

As a starting point, it is important to keep in mind that regardless of legal ownership, if a couple is legally married both spouses have an equal right to possession of a matrimonial home¹. In simple terms, what this means is that neither spouse can kick the other out of the home when they separate. This statutory right exists only for married couples, not common-law couples.

If an individual faced with this situation believes he or she should be granted possession of the matrimonial home to the exclusion of the other spouse, he or she would need to bring a motion before the court to ask for a court order giving him or her “exclusive possession” of the home. In determining whether to make an order for exclusive possession, a court would consider the following factors:

1. the best interests of the children affected;
2. any existing property-related or support-related court orders;
3. the financial position of both spouses;
4. any written agreement between the spouses;
5. the availability of other suitable and affordable accommodation; and
6. any violence committed by a spouse against the other spouse or the children.

Whenever one spouse occupies the matrimonial home to the exclusion of the other spouse, the occupying spouse may potentially be asked to pay “occupation rent”, which are payments made to the non-occupying spouse as compensation for having exclusive use of the home. Occupation rent is usually calculated as one-half of the rent the home would fetch on the open market. When deciding whether occupation rent should be paid, one would have to consider whether one spouse has a spousal support or child support obligation to the other, which may be partially satisfied through exclusive use of the matrimonial home, and whether there are joint housing expenses that are being paid for by the occupying spouse. These factors frequently offset any occupation rent that would otherwise be owed.

If the matrimonial home is subject to a joint mortgage, line of credit or other secured financing, both spouses are legally responsible for this debt regardless of whether they are still living in the home or not. The bank does not care if you have moved out of the home and can still pursue you if the payments are not being made. Similarly, property insurance and property taxes are – you guessed it – joint responsibilities in the case of a jointly-owned home. If one spouse agrees to take sole responsibility for these joint housing expenses after a separation, but he or she subsequently defaults on payment, both spouses’ credit scores may be negatively affected.

What if one spouse decides to stay in the matrimonial home and takes over all the joint housing expenses, then a long period of time then elapses between the date of separation and the date when property division occurs? That spouse may have been solely responsible for paying down a significant amount of principal on the mortgage and he or she may or may not receive full credit for these payments, depending on the circumstances of the case. If you are the spouse wishing to remain in the home and taking on this financial responsibility, you may want to consider this. Another issue to consider is who will cover necessary repairs or maintenance expenses for the matrimonial home, and will that spouse receive some form of credit for these expenses when the house is eventually divided or sold? It is best if these financial considerations are discussed and negotiated as early as possible, before they turn into arguments later over who is entitled to what.

Children can also be an important consideration. If one party is seeking custody of the children, he or she may want to stay in the matrimonial home for the benefit of the children, to minimize change and keep them in an environment they are comfortable and familiar with. In addition, a party may not want to leave the home without the children as it may jeopardize their claim for custody. It is generally regarded as inappropriate to leave the matrimonial home with the children unless both parents agree in advance, barring an emergency situation where one spouse and/or the children are in danger. A spouse who removes the children from the matrimonial home surreptitiously may be faced with an urgent motion brought by the other spouse seeking the return of the children, since this behaviour is frowned upon by the court.

Access with children is also an issue that needs to be considered if the children will continue residing in the matrimonial home. Before the access parent moves out, it is best to reach an agreement on how much access time that parent will have. Otherwise, the parent who left may be faced with a denial of access and be left in an unfavourable position in terms of bargaining for more time. When courts are faced with disputes about custody and access, it is important to keep in mind that there is a desire by the courts to maintain the “status quo”, so that children are faced with as little change as possible. This is something that should be taken into consideration by a spouse who is considering vacating the matrimonial home before a separation agreement is signed, especially if that parent is seeking physical custody of the children, or significant parenting time with them.

Hopefully, this article has brought to light some of the many issues that should be taken into consideration before moving out of the matrimonial home. It is often easiest from a legal standpoint to remain in the matrimonial home while the terms of a Separation Agreement are being negotiated, but where that is not possible, parties should at least turn their minds to the issues discussed above.

Nadine Russell was called to the Bar in 2011 and is currently an associate lawyer in the Siskinds Family Law Group. Nadine’s practice encompasses all areas of family law including property division, support issues, custody and access, as well as preparing asset protection agreements and separation agreements. If you have support issues or any issue related to family law, please contact Nadine at [email protected] or 519-660-7838 for a consultation.

¹ Family Law Act, RSO 1990, c F 3