When couples separate, there are two distinct questions about the family home: who gets to live in it during and after separation, and how the home's value is divided. These are separate legal questions with separate answers.
Both married spouses have an equal right to remain in the matrimonial home, regardless of whose name is on title. One spouse cannot simply tell the other to leave. If you want exclusive possession of the home — the right to remain there while your spouse must leave — you either need your spouse's agreement or a court order.
Courts grant exclusive possession orders when there are safety concerns, when one parent is the primary caregiver and stability for the children is paramount, or when continued shared occupation is genuinely unworkable. These orders are not automatic and require evidence.
The Family Law Act prohibits either spouse from selling, mortgaging, or otherwise disposing of the matrimonial home without the other's written consent, regardless of who owns it. This protection applies from the moment of marriage and continues until there is a court order, a separation agreement, or a divorce that addresses the home.
The matrimonial home has a unique and often surprising rule for property division: its full value on the date of separation is included in the equalization calculation, with no deduction for what it was worth when you got married — even if one spouse owned it before the marriage. This is an exception to the general rule that pre-marriage assets are excluded. The result is that the matrimonial home is fully shared in equalization, regardless of who brought it into the marriage.
Spouses dealing with the family home typically choose one of three paths: sell the home and divide the proceeds; one spouse buys out the other's interest and refinances; or one spouse continues to occupy the home for a defined period (often while children are young) before sale.
Which option makes sense depends on the equity in the home, each party's ability to finance a buyout, the overall equalization calculation, and parenting arrangements.
This is a general overview. For advice specific to your situation, contact Sheard Law at 416-860-9990 or use our intake form.
