Yes, if you are married. Section 24 of Ontario's Family Law Act lets the Superior Court of Justice give one spouse exclusive possession of the matrimonial home, whoever owns it. The court weighs the factors in section 24(3), including the children's best interests, any violence, both spouses' finances and other housing, and it can make a temporary order while the case continues.
How do you ask for exclusive possession in Ontario?
Both married spouses start with an equal right to live in the matrimonial home (s. 19(1) of the Family Law Act). An exclusive possession order sets that equal right aside for a period and lets one spouse live there without the other. It is a claim under Part II of the Act, which sits alongside the money claims explained on our property division page. Which properties count, and what the equal right means day to day, is covered in our page on the matrimonial home.
The usual path looks like this:
- Choose the right court. Part II claims can be heard only by the Superior Court of Justice; the Ontario Court of Justice is excluded (s. 17). In Toronto, see our guide to the Superior Court of Justice family court in Toronto.
- Start a case that includes the claim. The application (or the answer, if your spouse started the case) asks for exclusive possession under section 24. When the claim is made, the clerk issues an automatic order in Form 8.0.1 (Family Law Rules, rule 8.0.1).
- Serve a full financial statement. A claim for exclusive possession of the home and its contents calls for the longer Form 13.1 financial statement, even if no property division claim is made (rule 13(1.2)). Our page on financial disclosure in a property case lists the supporting documents.
- Attend the Mandatory Information Program. Each party must attend within 45 days after the case starts (rule 8.1(4)), though the court can waive this for urgency or hardship (rule 8.1(8)).
- Hold a case conference, or show urgency. Normally no motion can be heard until a case conference on the substantive issues is complete (rule 14(4)). That rule does not apply if the court finds urgency or hardship (rule 14(4.2)).
- Bring a motion for a temporary order. The court can make a temporary or interim order for exclusive possession and related relief (s. 24(2)). Your affidavit should give evidence on each section 24(3) factor.
- Reach a final result. The temporary order usually lasts until the parties settle or the court decides the case at trial.
In Toronto, the Superior Court's consolidated practice direction provides a "To Be Spoken To" court on Monday mornings for limited urgent and procedural matters, and sets out a separate route for motions that are too urgent to wait for it. Urgent filings go through the Ontario Courts Public Portal flagged as time sensitive.
The six factors the court must consider
Section 24(3) lists what the judge must weigh. No single factor decides the outcome, and the evidence you file should address each one.
| Factor | What the court looks at | Section |
|---|---|---|
| Best interests of the children affected | The possible disruption of a move to other housing, and the children's views and preferences if they can reasonably be found out | s. 24(3)(a), s. 24(4) |
| Existing property and support orders | Orders already made under Part I, and any support orders or other enforceable support obligations | s. 24(3)(b) |
| Financial position of both spouses | Income, savings and the cost of running the home compared with the cost of moving | s. 24(3)(c) |
| Any written agreement | A separation agreement, or any other written agreement between the spouses about the home | s. 24(3)(d) |
| Other suitable and affordable housing | Whether either spouse realistically has somewhere else to live | s. 24(3)(e) |
| Violence | Any violence committed by a spouse against the other spouse or the children | s. 24(3)(f) |
The children's factor connects to the wider parenting test. Section 24(4) adds two specific points, the disruption of moving and the child's own views, but judges also look at the arrangements the children rely on day to day. Our page on how courts decide a child's best interests explains that test.
The financial factors often overlap with support. A spouse who stays in the home may need help with the costs, and a spouse who leaves may need to rent elsewhere. If either of you needs money now, our page on getting support before the case is decided explains temporary support orders.
What an order under section 24 can include
An exclusive possession order is rarely just about who sleeps in the house. Section 24(1) lets the court combine several terms:
- delivering up, safekeeping and preserving the home and its contents (s. 24(1)(a));
- exclusive possession of the home, or part of it, for the period the court directs, and releasing any other matrimonial home from Part II (s. 24(1)(b));
- periodic payments by the spouse given possession to the other spouse (s. 24(1)(c));
- letting the contents, or some of them, stay for the use of the spouse in possession, or be removed for a spouse or child (s. 24(1)(d));
- requiring a spouse to pay all or part of the repairs, maintenance and other liabilities of the home, or to pay the other spouse for them (s. 24(1)(e));
- authorizing a sale or mortgage of a spouse's interest, subject to the possession order (s. 24(1)(f)).
That last power links possession to the consent rules. While the case is pending, neither spouse can sell or mortgage the home without the other's consent or a court order, as explained in our page on selling or mortgaging the home without consent.
The court can also add an interim order stopping a party from contacting the other, if that is needed for the Part II case to be dealt with justly (s. 25.1). Where safety is the concern, a separate restraining order can be sought under section 46 if the applicant has reasonable grounds to fear for their own safety or a child's.
What changes the answer
- Ownership does not decide it. The court can order exclusive possession "regardless of the ownership" of the home (s. 24(1)). A spouse who is not on title can be given possession, and an owner can be told to leave.
- Possession is not ownership. The order decides who lives in the home for a period. Who ends up with its value is settled through equalization, as our guide to how property is divided in Ontario explains.
- A marriage contract cannot take the right away. A marriage contract clause that limits a spouse's Part II rights is unenforceable (s. 52(2)). A written agreement is still one of the factors the court considers (s. 24(3)(d)).
- Common-law partners are outside Part II. Part II applies to spouses as defined in section 1(1), meaning married people (or people in a void or voidable marriage entered in good faith). Common-law partners cannot use section 24.
- A divorce. If only one spouse owns the home, the other's possession right ends when they cease to be spouses, unless a separation agreement or court order provides otherwise (s. 19(2)(b)). A possession order can be one of those orders.
- A change in circumstances. An order under section 24(1)(a) to (e) can be discharged, varied or suspended if there has been a material change in circumstances (s. 25(1)).
- A death. A spouse with no ownership interest who is living in the home when the other spouse dies, whether under an order or not, can stay rent free against the estate for 60 days (s. 26(2)).
- The home is outside Ontario. Part II applies only to matrimonial homes situated in Ontario (s. 28(1)).
Possession is not the same as the money claim, and it does not stop the clock on it. Equalization has its own limitation periods; our page on the deadline to claim equalization sets them out.
A worked example
For example, imagine a hypothetical married couple, Morgan and Alex, with two children aged 7 and 10. The house is in Alex's name alone, the children attend the local school, and Morgan has been the main caregiver. After separation, both stay in the house and the tension between them is affecting the children. Morgan earns less and cannot find a rental near the school that is affordable. Alex has family nearby who can house Alex for now.
Morgan starts an application in the Superior Court of Justice claiming exclusive possession, files a Form 13.1 financial statement, and asks for a temporary order. On the motion, Morgan's affidavit covers each factor: the children's school and routines (s. 24(3)(a)), each spouse's income (s. 24(3)(c)), the lack of affordable rentals nearby (s. 24(3)(e)), and the absence of any written agreement (s. 24(3)(d)). On facts like these, a court might give Morgan temporary exclusive possession and keep the furniture in the house for the children's use, even though Alex owns it.
The court might also order Alex to keep paying the $2,600 monthly mortgage under section 24(1)(e), with Morgan covering utilities and insurance. If the case takes nine months to resolve, Alex pays $23,400 in mortgage payments over that time ($2,600 × 9). How those payments are treated in the support and property settlement is a separate question for the parties or the court. None of this changes who owns the house.
Common mistakes when seeking exclusive possession
- Changing the locks instead of asking the court. The other spouse keeps an equal right to possession until an order or agreement changes it (s. 19(1)).
- Filing in the wrong court. The Ontario Court of Justice cannot make Part II orders (s. 17), so the claim has to be brought in the Superior Court.
- Filing evidence that ignores the factors. An affidavit that only describes the conflict, without addressing housing, finances and the children, leaves gaps the judge must fill.
- Using the wrong financial statement. A possession claim requires Form 13.1, not the shorter Form 13 (rule 13(1.2)).
- Assuming the order is permanent. It lasts for the period the court sets, and can be varied on a material change (s. 25(1)).
- Breaching an order. Contravening an exclusive possession order is an offence, with a fine of up to $5,000, up to three months in jail, or both for a first offence (s. 24(5)), and police can arrest without a warrant (s. 24(6)).
What to do this week
- Confirm you are married and the home is in Ontario, and note the date you separated.
- Write a short, dated account of each section 24(3) factor as it applies to you, with documents where you have them.
- If there has been violence or threats, keep records, and call 911 in an emergency.
- Gather the deed, mortgage statement, property tax bill, insurance policy and three recent utility bills.
- Price out realistic rentals near the children's school so you can show whether other suitable, affordable housing exists.
- Start preparing a Form 13.1 financial statement.
- Book a free consultation through our contact page to plan the application and any urgent motion.
Frequently asked questions
Can I get exclusive possession if the house is only in my spouse's name?
Yes. The court can make the order regardless of who owns the home (s. 24(1)). Ownership is not one of the section 24(3) factors, though the spouses' financial positions are.
How long does exclusive possession last?
It lasts for the period the court directs (s. 24(1)(b)). Temporary orders usually run until the case settles or is decided, and a final order can be time-limited, for example until the home is sold.
Will I have to pay my spouse while I live in the house?
Possibly. The court can order the spouse in possession to make periodic payments to the other spouse (s. 24(1)(c)). It can also decide who pays the mortgage, repairs and other costs (s. 24(1)(e)).
Can my spouse come back to collect belongings?
The order can say which contents stay in the home and which may be removed for a spouse or child (s. 24(1)(d)). Arrangements for picking up belongings are often written into the order or agreed in writing.
What happens if my spouse ignores the order?
Contravening an exclusive possession order is an offence (s. 24(5)), and a police officer can arrest without a warrant on reasonable and probable grounds (s. 24(6)). Possession orders can also be registered against the land (s. 27).
Can a common-law partner ask for exclusive possession?
Not under section 24, because Part II applies only to married spouses as defined in section 1(1). Common-law partners have different property claims, and safety concerns can be addressed through a restraining order under section 46.