Does a common law spouse have a right to continue to occupy a family home post-separation, when not a registered owner?
Usually, the answer is no. Common law spouses are not afforded the same rights of possession that married spouses are under Ontario’s Family Law Act.
However, there may be certain cases in which a common law spouse can obtain an order that allows them to stay in the home. In a 2016 case (Perks v. Lazaris), Justice McGee describes several legal arguments that a spouse might be able to use to effectively maintain possession of a home:
- Seek an order for a “nesting arrangement” under the Children’s Law Reform Act, Section 28(1).
- “If a common law spouse has a pending trust claim, there may be grounds for an injunction allowing him or her to remain in the home pending the outcome of the trial.” (See para 27).
- Possession of a home could be characterized as support under the Family Law Act, subsection 34 (1) (d).
- A restraining order under the Family Law Act or the Children’s Law Reform Act could have the impact of allowing the non-tiled spouse to continue to reside in the home.
These remedies are not widely available, and some of these remedies rely on overly broad interpretations of the legislation or common law, but, in limited situations, particularly with children’s best interests at stake, judges may be inclined to grant possessory relief to a non-titled spouse on the basis of one or more of the rationales listed above.