Who gets to stay in the home?

The short answer

In most of Canada, a married spouse has the right to stay in the family home after separation no matter whose name is on title, and neither spouse can lock the other out without an agreement or a court order. If living together is not workable, you can agree on who stays or ask a court for exclusive possession, which looks at children, other housing and any abuse. Unmarried partners usually have fewer rights. US states have their own temporary orders. If you are in danger, safety comes first and emergency orders move fast.

One of you wants the other to leave. Or one of you has already left and now wants back in. Or you are both still there, sleeping in different rooms, and neither of you is willing to be the one who goes. The question underneath all of it is simple: who actually has the right to be in this home?

The answer is usually not "whoever owns it". This guide explains the general rules in Canada and the US, what you can and cannot do on your own, how exclusive possession orders work, and what changes when there is abuse. It is general information, not legal advice. The rules differ by province and state, so confirm your position with a family lawyer where you live.

If you are the one deciding whether to leave, read our companion guide, should I move out of the family home. This guide is written mainly for the person who wants to stay.

Married spouses: an equal right to stay, whoever owns it

In Ontario, Steps to Justice explains that after separation both married partners have an equal right to stay in a matrimonial home located in Ontario. This is true even if only one of you is on title, or one of you owned the home before the marriage. It also applies to a rented home, even if only one of you is on the lease.

That right is about living there, not about ownership. It means an owner spouse cannot lock the other out or refuse to let them in without an agreement or a court order. In Ontario it lasts until one of these happens:

a separation agreement says one of you cannot live there;
a court order says one of you cannot live there;
the home is sold or the lease ends; or
you divorce. Steps to Justice warns that if you divorce and you are not on title, you are no longer a spouse with an equal right to stay, which is one reason not to finalise a divorce before the home is dealt with.

Two more points matter. A spouse who moves out does not give up a claim to ownership or to a share of the home's value. And in Ontario a matrimonial home can only be sold or mortgaged with the other spouse's written consent or a court order. Different rules apply to homes on a First Nations reserve.

Quebec takes a similar starting point. Éducaloi says both spouses are allowed to live in the family home while separated, no matter who owns it; in theory one cannot force the other out, and a spouse who leaves can return. Other provinces have their own statutes, so check your provincial guide and confirm with a lawyer.

Unmarried partners: usually fewer rights

Steps to Justice is direct about this: only married couples can have a matrimonial home in Ontario, so common-law partners have different rights. In practice, title or the lease carries much more weight. Some provinces give certain unmarried partners more protection than others. Alberta's Family Law Act, for example, lets a court make possession orders for adult interdependent partners as well as spouses. If you are not married, get advice before assuming you can stay or that you can be made to leave. Our guide to common-law property province by province covers the wider picture.

Can I change the locks?

Usually not, if your spouse has a right to be there. Éducaloi says that because both spouses have the right to stay during separation, neither one is usually allowed to change the locks without telling the other, though there can be exceptional situations, and a legal professional can help decide whether yours is one. In Ontario, an owner spouse cannot lock the other out without an agreement or order.

Changing the locks on your own tends to escalate everything. It can lead to an urgent court application against you, and if children are involved it rarely looks child-focused. The lawful route is an agreement or an order. Once you have an exclusive possession order, Steps to Justice notes that it allows you to change the locks.

"I do not think we can keep living under one roof. I would like to talk about which of us stays for now, and what the other needs to move out properly. Can we sit down with a mediator this month?"

"I changed the locks. Your things are in the garage."

Agreeing on who stays

Most couples settle this without a judge. Steps to Justice suggests thinking about:

whether either of you has somewhere else to live, and how quickly;
whether one of you needs the home, for example because you work from it;
how a move would affect the children, including school, friends and activities;
whether the parent who mostly looks after the children should be the one who stays.

Write down the practical terms too: when the person leaving can collect clothing and paperwork, how mail is redirected, when they see the children, and who pays the mortgage or rent, utilities, property tax, insurance and upkeep while things are unresolved. An interim written agreement can be short. Our guide to interim arrangements while you sort it out lists what to include, and separated under one roof covers the months when neither of you can leave yet.

When you cannot agree: exclusive possession orders

Ontario

If there is a lot of conflict and it is very difficult for you or your children to live with your spouse, you can ask a court for an order for exclusive possession of the matrimonial home. Steps to Justice explains that it lets you and the children stay in, or return to, the home, keeps your spouse off the property, and allows you to change the locks. It does not change who owns the home, and it does not let you sell or mortgage it without your spouse's permission.

In deciding, the court looks at things like:

whether other suitable and affordable housing can be arranged;
whether one spouse has been abusive towards the other or the children;
any existing court orders;
where there are children, their best interests, including how a move would affect them and, in some cases, their views.

The order can come with duties, such as paying the utilities and caring for the home, and can say when the other spouse may collect belongings or come to the home, for example only to pick up the children. In Ontario, the Ontario Court of Justice cannot make this order; you apply to the Superior Court of Justice or its Family Court branch.

British Columbia

Section 90 of BC's Family Law Act lets the Supreme Court give a spouse exclusive occupation of a family residence for a specified period. The residence must be owned or leased by one or both spouses and be where they ordinarily lived. The order does not give ownership. Section 91 separately lets a spouse ask the Supreme Court to stop the other from disposing of property that is in dispute.

Alberta

Under section 68 of Alberta's Family Law Act, a court making a support order can give a spouse or adult interdependent partner exclusive possession of the family home, evict the other, or keep them away. Section 69 tells the court to consider other accommodation within both partners' means, the needs of the children living there, each partner's finances, other orders, and any lease conditions.

Quebec

Éducaloi explains that a spouse who wants to live in the home and keep the other out must make an urgent request to a judge for a safeguard order for exclusive use of the family residence, linked to a divorce application. It can take a few days or a few weeks. The right to the home is closely tied to where the children live. A spouse who was forced out without an order can ask to return, but must act quickly, because the more time passes, the less likely a judge is to let them back.

In the United States

States use different names and rules, so treat these as examples only. The Oregon Judicial Department explains that after a divorce petition is filed, either spouse can file a motion for temporary orders, including, in certain circumstances, an order about temporary use of property. Temporary orders take effect when a judge signs them and last until changed, until the final judgment, or until the case is dismissed. In Maryland, Maryland Legal Aid lists use and possession of the family home for up to three years, if you were given custody of the minor children, among the things you can ask for in a divorce. Ask a family lawyer or your court's self-help centre what your state offers.

If there is abuse or you are afraid

Safety comes before any of the above. If you are in immediate danger, call 911. Justice Canada notes that police can help with a peace bond and connect you to victim services, and that victim services or a lawyer can help you get a protection order. Steps to Justice lists abuse as a factor in exclusive possession in Ontario, and in an urgent situation you do not have to wait for the normal court steps.

In California, the courts' self-help guide says a domestic violence restraining order can order the other person to move out of a shared home, can include child custody orders, and costs nothing to file. The National Domestic Violence Hotline (1-800-799-7233) can help you plan in the US. Our safety planning guide covers what to pack and how to leave safely if you need to.

When to get professional help

Your spouse has changed the locks, or is threatening to.
You are thinking of leaving with the children and want to know how it will affect parenting arrangements.
You are not married and are unsure of your rights to the home.
There is abuse, or you are afraid. Speak to a lawyer, legal aid or victim services before you act.

A short consultation is often enough to know where you stand. The FairWell directory lists family lawyers and mediators by province and state, and the free assessment can help you work out what to sort first. When you are ready to record who stays and who pays, Separation Agreement Prep walks you both through the home, the mortgage and the children.

This guide is general information, not legal advice. Family law differs by province and state and changes over time. Confirm your position with a lawyer where you live before relying on it.

Sources

Common questions

My spouse owns the house. Can they make me leave?

Usually not on their own, if you are married. In Ontario and Quebec, for example, a married spouse can stay in the family home after separation whatever the title says, until there is an agreement, a court order, a sale or, in Ontario, a divorce. Unmarried partners generally have fewer rights, so get advice if you are not married.

Can I change the locks after we separate?

Generally not while your spouse still has a right to live there. Changing locks without an agreement or court order can lead to an urgent application against you. An exclusive possession order, where granted, does allow you to change the locks.

If I move out, do I lose my share of the house?

No. Steps to Justice confirms that in Ontario a spouse who moves out keeps the right to claim ownership or a share of the home's value. Moving out can affect other things, such as day-to-day parenting arrangements, so think those through first.

How quickly can I get an exclusive possession order?

It depends on where you live and how urgent it is. Éducaloi says a Quebec safeguard order can take a few days to a few weeks. Where there is abuse or immediate danger, courts have faster routes, and police and victim services can help in the meantime.

What if there is violence in the home?

Call 911 if you are in immediate danger. Police can help with a peace bond, and a lawyer or victim services can help you seek a protection or restraining order, which in some places can require the other person to move out.

Settle the home question in writing

Separation Agreement Prep helps you both record who stays, who pays what in the meantime, and what happens to the home later, in a draft a lawyer in your province or state can review. It is preparation for professional review, not a substitute for it.

Start your separation agreement

This guide is general information for parents, not medical, psychological or legal advice. It draws on published research and guidance from recognised health and family justice bodies, listed under Sources. Every child and family is different. If you are worried about your child or yourself, talk to your family doctor or a qualified professional. FairWell can help you find one through the professional directory. How we write and check our guides.