Can You Get the Family Home When You Separate?

Q. My common-law husband is seeing someone else. I want out. Can I make him pay the mortgage until our children leave home?

A. You can try. Whether you can convince Ontario family court depends on your circumstances.

Before you give him his pink slip, make a few notes about your financial situation. What did you bring into the relationship? What do you own together? Separately? Who paid for the home?  

Common-law couples who separate usually get only what they brought into a relationship or acquired together. Not being legally married has financial consequences.

First things first. You can leave at any time. It’s not necessary to go to family court or make any kind of separation agreement. The situation changes if you have biological or adopted children together. Then you may need to make arrangements for your spouse to share decisions about their care and spend them with the children. You can still do that informally, without going to court. But filing your agreement in court has advantages. Let’s start from the top. 

Living Common Law in Ontario

Common law status only applies if you cohabitated for a year (three years for those without children). Cohabiting means you considered yourself a couple and the community saw you as one, you had a sexual relationship, shared your home and helped with the household and children. 

Your Common Law Rights

You have a right to:

  • assets and property you owned before cohabitating
  • share anything you acquired jointly, like investments or debts — you may be 100% liable for shared debts if your spouse stops making payments
  • parenting time and decision-making responsibility for the children, the new terms for access and child custody as of March 2021 
  • share the family home if you’re on the property title or be compensated if your spouse was unjustly enriched by your contributions.

Why You Need a Cohabitation Agreement

Your situation changes if you have a cohabitation agreement. Many common law couples make a “prenuptial-type” agreement to split their home, finances or decision-making responsibility for kids if they separate. The agreement is legally binding provided you understood it at the time, weren’t pressured or coerced to sign and were honest about your finances.

Who Owns the Family Home

Now back to your question about the family home. No surprises, you have no rights to the home you lived in unless you legally own it or have a cohabitation agreement. Whoever owns it makes the rules and normally can sell or mortgage the home as they see fit, no permission required. 

Exceptions to the Family Home Rule

Fortunately for you, family court can make exceptions. Let’s say you were a stay-at-home parent for most of your years together. You cared for the children, fed and dressed them in the morning, ferried them back and forth to school and hockey practice, helped them with homework and cheered on their school plays. Your spouse, on the other hand, worked overtime and rarely got home in time to do anything but kiss them goodnight. You cooked, cleaned, painted, mowed the lawn and paid the utility bills. Although your spouse may own the home, you could be entitled to a share when you separate.

Making a Constructive Trust Claim

In other words, you may have a constructive trust claim if you can prove four counts:

  1. Your spouse was enriched by money or labour you contributed to the family home.
  2. That enrichment deprived you.
  3. There is no reason your spouse should be enriched over you — for instance, the home was not a gift.
  4. The property was improved because of your efforts.

Asking Family Court for Occupancy

Typically in an unjust enrichment claim, you get a cash award or a share of the proceeds if your spouse sells the home. But in your case, you want the right to stay in the home with the children while they are minors. Can you succeed in court? The answer is maybe. 

Separating couples have options:

  • You could petition the court for exclusive occupancy, usually reserved for legally married couples in abusive relationships. Take note: Ontario family court granted temporary exclusive possession to an common law spouse with medical issues who lived alone in the home while her former boyfriend was out of province for several years.
  • You could live separate and apart in the home while legally separated. Provided you can get along, you may be comfortable dividing the house in half. 
  • You could request occupancy as part of a spousal and child support order. A family court judge can include this in a support order even if your name is not on the property title. If you do not get support, you will have to the leave the home.

After all, as the children’s primary caregiver, you and they will need a place to live. Remaining in the family home may provide the stability they need during these trying times.

Legal Advice for Separating Common Law Couples

Axess Law’s Ontario family lawyers finalize separation agreements for common law relationships. Video conference online with a licensed family lawyer anywhere in Ontario 7 days a week, day or evening. Call 1-877-522-9377 or in Greater Toronto 647-479-0118 or use our online booking form to make a convenient video call appointment. Flat rate lawyers can meet with you in person at our Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland law offices.

Click here to learn more about Axess Law’s family law services.

Photo by  by Bill Kasman|Pixabay.