Deciding to get a divorce is one of the most difficult choices a person could make. Knowing the right time...
Deciding to get a divorce is one of the most difficult choices a person could make. Knowing the right time to leave the family home is often even more challenging. For many of our clients, it involves intense emotional pain and guilt, accompanied by fear of how moving out might impact the children.
If you are wondering if you should leave your spouse before filing for divorce, the good news is you do not need to leave your home right away. However, there are some considerations you should address immediately to ensure the process goes smoothly. Learn more about divorce law from our knowledgeable family lawyers.
In Ontario, both spouses have a legal right to stay in the matrimonial home under the Family Law Act, R.S.O. 1990, c. F.3, regardless of whose name is on the title. We recommend that you do not leave your spouse voluntarily before filing for divorce unless necessary, or at least until a separation agreement or court order is in place. Your spouse cannot legally force you to vacate your home simply because they ask you to or due to the breakdown of your marriage.
However, if living together is impossible, one spouse may apply to the court for exclusive possession. This order allows you to live in the matrimonial home while forcing your spouse to move out. This legal action is most common in cases of family violence or when cohabitation is unsustainable. The court’s primary goal here is to protect your children’s stability.
If one spouse remains in the matrimonial home after separation while the other has moved out, the spouse who stays in the home may, in some circumstances, be required to pay occupational rent. Occupational rent is compensation that one spouse may owe the other for having the exclusive use and benefit of a jointly owned property during the separation period.
Occupational rent is not automatic. Ontario courts consider a range of factors before deciding whether it is appropriate, including why one spouse remained in the home, whether they had exclusive possession by court order, the financial circumstances of both parties, any mortgage or household expenses paid by the occupying spouse, and whether requiring occupational rent would be fair in the circumstances.
If you are considering remaining in the matrimonial home after separation or have already left the home, it is important to obtain legal advice for the divorce process. Whether occupational rent applies will depend on the specific facts of your case.
To file for a no-fault divorce in Ontario, you must have been separated for at least one year. This date is when you and your spouse started living separate and apart with the intent to end the marriage, not necessarily when you left the family home.
You could be separated while living under the same roof, as long as you stay in separate bedrooms, have no shared social life, and keep separate finances, for example. Establishing a clear separation date before filing for divorce is critical for avoiding disputes with your spouse around property division and support obligations, not necessarily to show that you have already moved out.
In cases involving domestic violence, you should leave your spouse before filing for divorce for your safety. The amended Canadian Divorce Act has prioritized the safety of domestic violence victims since 2021. It introduced a broad, explicit definition of family violence by defining sexual, emotional, psychological, and financial behavior that is threatening, coercive, controlling, or causes fear for safety.
If you are fleeing an abusive relationship, get help creating a safe exit plan, which typically includes financial preparation and focusing on the best interests of the children, including safely removing them from the situation as well if you fear for their safety.
It is normal to ask: Should I leave my spouse before filing for divorce? But it is important to understand that the best time to leave your spouse is different for everyone. Before you make this vital decision, it is best to consult with a family lawyer to learn how it would affect property division and parenting rights. The Riley Divorce & Family Law Firm is available 24 hours a day to better serve you. Reach out to our office today for the clear answers you need to make these monumental decisions.
Dealing with marital conflicts alone could be risky. We help couples across Ontario with compassion, so let us guide you through the divorce process for the best possible outcome for you and your family.
The Riley Divorce & Family Law Firm
