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Toronto Star

We're separated but still living together. It's tense, and one of us has to go. How is that decided? Ask Gelman

Q: My spouse and I recently separated. We live together in our shared home, but there is tension. Neither one of us wants to leave. Is there a 'rule' that determines who must move out after separation? A: This is one of the most common and difficult questions people face when separating. For many separating couples, deciding who will leave the matrimonial home is not just a legal issue, it's an emotional one, tied to family memories, and the comfort of familiar surroundings. ARTICLE CONTINUES BELOW In Ontario, there is no automatic rule about who must move out of the shared home when a couple separates. The answer depends significantly on whether you're married or in a common law relationship. For married couples, both spouses have an equal right to possession of the matrimonial home, regardless of who owns it or whose name is on the lease. This legal protection comes from Ontario's Family Law Act and means neither spouse can legally force the other to leave without a court order. Business Opinion Lisa Gelman: I'm getting divorced and just found out my husband has been buying bitcoin. How do we split digital assets? Ask Gelman Unlike traditional assets such as stocks or property, writes family lawyer Lisa Gelman, digital Both spouses have the right to remain in the matrimonial home until an agreement or court order grants one spouse exclusive possession, the home is sold or the lease ends, or a Divorce Order is issued. Once a divorce is finalized, if you are not a legal owner or tenant of the home, you are no longer considered a 'spouse' under the Family Law Act and lose the automatic right to live in the matrimonial home. For this reason, it's essential to have a written separation agreement or court order that outlines what will happen to the home after separation. ARTICLE CONTINUES BELOW ARTICLE CONTINUES BELOW In contrast, common law couples do not have the same legal rights to the shared home. If only one partner is on the title or lease, they generally have the right to remain, and the other may be required to move out. Individuals in a common-law relationship who wish to make a claim to property must pursue a trust claim or an unjust enrichment claim in court, which can be both time-consuming and costly. In some cases, selling the home may be the most practical or necessary option, especially if neither party can afford to buy out the other or remain on their own. This usually occurs through negotiation or a court-ordered sale during property division. If you decide to remain in the matrimonial home after separation, you will likely need to pay your spouse for their share of the home's value. As the matrimonial home is often the largest family asset, this may involve refinancing or taking out a new mortgage to provide your spouse with a lump-sum payment. ARTICLE CONTINUES BELOW ARTICLE CONTINUES BELOW To do so, you'll need to qualify for the mortgage on your own. Lenders typically require documentation related to your separation, including the separation agreement and details of any child or spousal support obligations, to assess whether you can afford the new mortgage payments. There are both advantages and disadvantages to living apart during separation. Living separately can reduce conflict, help children adjust, and make it easier to start negotiating a settlement. One of the main reasons a spouse may choose to move out is to clearly establish the start of the one-year separation period, which is required if you are pursuing divorce on the grounds of separation. Business Opinion Lisa Gelman: I think my spouse is hiding assets in our divorce. How can I find out? Ask Gelman There are a few signs that could suggest your spouse may be hiding assets. Here's how you can However, it can also increase financial strain, especially if both parties are now maintaining separate households before the divorce is finalized. The best way to move forward is by working toward a separation agreement. This legally binding document outlines terms related to living arrangements, finances, property, and parenting. It's highly recommended to consult with a family lawyer to draft or review such an agreement to protect your interests. ARTICLE CONTINUES BELOW ARTICLE CONTINUES BELOW During this time, adjusting to new living arrangements can be difficult. Whether it's finding housing, co-parenting, or managing costs, many people benefit from legal and emotional support. A family lawyer can help you understand your rights and guide you through the process in a way that prioritizes your well-being. Clarification - June 2, 2025 This article was updated from a previous version to make clear that both spouses have the right to remain in the matrimonial home until an agreement or court order grants one spouse exclusive possession. The previous version mistakenly referred to a separation agreement.