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We're not married. Who gets to stay in our home if we separate?

The rules about who can stay in your home depend on whether you're married or in a common-law relationship.

Generally, only married couples have special rights to stay in their matrimonial home.

Legal owner or tenant

Since common-law couples cannot have a matrimonial home, you only have the right to stay in your home if you're one of the:

  • legal owners on the title of the home or,
  • legal tenants

This right can be changed by a court order or an agreement.

If you and your partner both own the home, you can agree to either:

  • one of you buying the other’s share in the home
  • sell the home and share the money from the sale

If you can't agree, you can ask a court to sell the home.

Not a legal owner or tenant

Most of the time, you can be forced to leave if you're not a legal owner or tenant of the home. The legal owner or tenant can lock you out, sell, or mortgage the home at any time.

If you want to stay, you need:

Special rules for homes on a First Nations reserve

There are different rules that apply to a home that is located on a First Nation reserve.

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Agree on who stays in the home

You and your partner may agree on who stays in the home. You can do this even if only one of you is the legal owner or tenant of the home.

You can also decide that both of you will continue to live in the home. You don't need to live separately to legally separate. You can "live separate and apart under the same roof". This means you both live in the same home but you don't do things together any more, such as sleep, go out, cook, or eat together.

You might continue to live in the same home because it is easier to care for your children together or because it is too expensive to move out.

Whether you and your partner can live separate and apart in the home, even on a temporary basis, often depends on:

  • how tense things are between you and your partner
  • whether someone can afford to move out or has somewhere else to go
  • safety concerns, including if there has been a history of domestic abuse

You should also think about what you want to happen with the home after you and your partner have resolved all of your other issues.

Sometimes neither partner wants to keep the home, or both partners agree that they can't afford the home anymore. Other times, both partners want to live in the home and want the other partner to move out.

Some of the things to think about when deciding are:

  • Do you or your partner have other places to live? How quickly can you move to this place?
  • Does one partner need to be in the house? For example, do they work from the home?
  • Are your children going to be affected if they move out? What connections do the children have to the location, for example, schools, friends, and activities?
  • Should the parent who mostly looks after the children be the person who stays in the house?

If one partner agrees to move out, they may move out on certain conditions only, such as:

  • they get time to get their personal items, such as clothing and paperwork
  • mail is redirected to their new address
  • they still get to see the children

If one of you moves out, you and your partner need to decide who pays for costs such as electricity and property taxes. You might also need to consider who does yard work, home repair, or maintenance tasks for the home.

You may need

Agree to sell the home

You and your partner may agree to sell the home if you are both owners. Everyone who is an owner of the home needs to agree for the home to be sold, unless you have a court order.

If your partner is going to sell their share of the home to you, you usually have to qualify for a new mortgage without your partner. You and your partner also need to agree on how much you pay to buy the home. You can ask a real estate professional to help you agree on the value of the home.

If neither of you is going to keep the home, you should think about how to sell your home. For example, you might want to agree to have the home cleaned up and listed for sale by a certain date. You might also want to agree on a real estate agent to help you.

You should also include in your agreement what happens with the sale money from your home.

If you and your partner agree, or a court orders that the home be sold, the mortgage and real estate fees are paid first and then you and your partner divide the money that remains. You might not divide this amount evenly. It depends on what the title to your home says and what your agreement or court order says.

You can agree on who lives in the home or to sell the home in a separation agreement. Your separation agreement can also deal with how to divide property, support, custody, and access.

If you and your partner cannot agree on who lives in your home and how to divide property, you can get help from a family law professional or go to court.

Because you may be giving up important rights by moving out of the home or signing a separation agreement about who lives in the home or can sell the home, you should talk to a lawyer.

If you can't afford to hire a lawyer for your whole case, some lawyers will provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.

If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.

You may need

Go to court

To stay in the home when you are not a legal owner or tenant

If you and your partner can't agree about you staying in the home when you are not a legal owner or tenant, you need a court order to allow you to stay.

A court only orders this in limited situations. For example, a court may decide that you should stay in your home as part of your right to a spousal support order. Or it could order that you can stay in your home because you have a property claim to the home.

If you want to make a property claim to say that you should be recognized as an owner of the home, you usually have a time limit of 10 years after you separate. Sometimes a court extends the time to make a claim.

To have your partner removed from the home

If you want your partner to leave the home and they are a legal owner or tenant and they refuse to leave, you need a court order. Sometimes this is called an order for "exclusive possession". It is possible to get this type of order if you're not a legal owner or tenant but it is very hard.

To get an order for exclusive possession, you usually have to show that there is a lot of conflict in the home and it is very difficult for you or your children to live in the same home as your partner.

This order doesn't affect who owns the home, only who can live in the home.

When deciding whether to make an order for exclusive possession, the court looks at things like:

  • any existing court orders
  • both partners' finances
  • if other suitable and affordable living arrangements can be made
  • if one partner has been abusive towards the other or the children

If there are children, the court looks at the best interests of the child by paying special attention to:

  • how a move might affect the child
  • the child's views and wishes, in some cases

An order for exclusive possession may also include specific responsibilities for the partner who lives in the home. For example, the partner living in the home may have to pay the utilities and be responsible for care of the home.

An order can also say if the other partner is allowed to pick up their personal items from the home or if they are allowed to visit the home. For example, they may only be allowed to go to the home to pick up the children for access.

To sell your home

If you're both owners of the home but can't agree to sell your home, you can also ask the court to let you sell the home.

Going to court can be a complicated process and it can take a lot of time. It can be stressful and expensive, but it is sometimes necessary to decide your issues.

You can talk to a lawyer who can help you understand what the law says about who can stay in the home after you separate from your partner. A lawyer can also explain your options and help you through the process.

If you can't afford to hire a lawyer for your whole case, you can still speak with one for general advice. Some lawyers also provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.

If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.

You may need
September, 2015

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