Deciding Who Will Move Out When You Separate

This script discusses moving out when you separate, including:

• who should move out
• whether you can lock your spouse out of the home
• getting a court order to make your spouse move out
• what to do if your spouse harasses you after you have separated

Should someone move out?

Some couples stay together after they separate, usually because it’s cheaper to live in one place with one set of household bills than in two places with two sets of bills. This isn’t possible for everyone, particularly if there is a risk of domestic violence or there is a lot of conflict in your relationship after separation and the children still live at home

Who should move out?

If you have children, and you and your spouse can talk about who should move out, several things will influence your decision about who will stay in the house and who will move out:

• Do the two of you get along well enough to stay in the home together? If you argue, how much are the children exposed to your conflict?
• Where are the children likely to stay after the separation, and who will be mostly responsible for looking after them?
• Where do the children go to school or daycare? Where are their extracurricular activities located?
• Can you afford to get a second home big enough for you and the children?
• Will either one of you be keeping the home after separation? Can either of you afford to keep it?

It often makes sense that the person who will be primarily caring for the children or keeping the home (after buying out the other spouse’s interest in the home) should stay in the home, and the other person should move out.

When should you move out?

There’s no rule that says when you can and can’t move out, or that you must tell your spouse ahead of time that you’re moving out. If it’s a very emotional separation or there has been violence between the two of you, or there is risk of violence, you might want to move out when your spouse isn’t home. If you’re unsure about moving out because you anticipate being primarily responsible for the children or want to buy out your spouses’ interest in the home so you can remain there, you get advice from a lawyer.

Can you move back in after you’ve moved out?

If you both own the home or are both listed on the lease or rental agreement, you can move back in if you want. It’s your place too. But you should let your spouse know about your plans first, and you may want to think twice about moving back in if it’s just going to escalate your conflict. Also, if you can’t get along, you may need a court order to move back in or force your spouse to move out. Get legal advice in this case.

Do you risk losing your share of the property if you leave?

You may be worried that if you move out of the family home, this will affect who gets what. Don’t worry. If you have a right to a share in the family home, you will not lose that right by moving out. However, if you move out of the home while your spouse remains, it might be difficult later to convince the court that you should be allowed to move back in while you work out an agreement or get a court order that resolves all issues from the breakdown of your relationship.

If you are a married or an unmarried spouse, and you haven’t started a court case yet, and the property is in only your spouse’s name, you can file a Land (Spouse Protection) Act entry against the home to prevent your spouse from selling it without notice to you. If a court case has started, married and unmarried spouses can also file a Certificate of Pending Litigation against title of the home under the Land Title Act to protect their interest in the family home, or any other property owned by their spouse, from creditors and from the property being refinanced or sold without their knowing. If you have a choice, a Certificate will better protect you.

What if you live together in rented accommodation?

If you and your spouse live in rented accommodation, then it often comes down to whose name the lease or rental agreement is in, because that person is legally responsible for paying the rent. If the spouse planning to remain in the rented accommodation and take over the related expenses is not on the lease or rental agreement, then arrangements need to be made with the landlord to transfer the agreement into that spouses’ name. If the lease or rental agreement is in both of your names, then arrangements need to be made to transfer it into the name of the spouse remaining in the accommodation, or if both spouses want to move out, then arrangements need to be made with the landlord to end the agreement or set up a sublet.

Can you take any household belongings?

Each of you has the right to a reasonable share of the household belongings and to anything that you brought into the relationship. If you’re the one who is moving out and you’re taking the children with you, you’ll need to consider their needs when deciding what to take and what to leave behind. But don’t strip the place bare or take more than a fair share, and don’t take things out of spite. Later on, you can always apply to the court if there are more things that you want from the home and you and your spouse can’t agree on whether you can have them.

If you are the one remaining in the home and your spouse has taken no steps to remove their belongings, you should take the following steps before getting rid of those belongings. If the property is in your name alone (owned or rented) and your spouse’s financial interest in it is small, you can give your spouse a deadline—in writing—to remove their belongings and tell them what you will do if they miss that deadline. That may motivate them to move. If the property is in joint names (owned or rented), then your spouse may have a legitimate claim to leave their possessions in the home until the claim is resolved and you should see a lawyer.

What to take with you

If you plan to leave your relationship and you want your children to live with you, you may want to take them with you when you move out. If you can’t take your children with you and they are safe in the home with your spouse, then you may leave them at home. Moving out without your children does not mean you have abandoned them. But if your spouse tries to prevent you from seeing them or spending time with them after you have moved out, you should see a lawyer.

Whether or not you have children, you should also take the following important documents and information with you when you leave:

• Your marriage certificate, if you’re married
• Financial information, such as your tax returns for at least three years, statements from bank accounts, investment accounts, RRSP accounts and debt accounts, and copies of recent paystubs
• Your CareCard and other health and dental insurance cards
• Your SIN card, your driver’s licence, your passport, and any immigration papers
• You children’s birth certificates and passports
• Medications and prescriptions
• Some of your children’s clothing, furniture and personal belongings
• Copies of pictures of your spouse’s financial information, such as paystubs, tax returns, company records and ledgers, bank accounts, investment accounts, and RRSP accounts
• A record of your spouse’s Social Insurance Number, CareCard number and date of birth

Can you take money from a joint account?

If you have a joint bank account with your spouse, you can usually take up to half the money in the account. Don’t take any more than half. Consider not taking anything if you have an income and your spouse does not or if payments for important family expenses like the mortgage come from the joint account. You should also consider letting your spouse know the funds you have removed after you have done so, so that they are not surprised when they access the account.

What about debts?

If you have any joint credit cards with your spouse, consider calling the bank to tell them that you are separating and ask them to cancel your credit card for the joint account. You don’t want the bank to hold you responsible for new charges on the account if you can avoid it.

If you have a line of credit or an open mortgage with your spouse and you worry that your spouse might withdraw more money, consider calling the bank and asking them to:

• freeze the line of credit or mortgage
• reduce the credit limit to the present balance
• convert the account to deposit-only
• require two signatures to withdraw more money

You should talk to a lawyer before doing anything that might look unfair. And you should let your spouse know if you take any of these steps.

What if you want to stay in the house?

If you have children, it might be in the children’s best interests to stay in the home. In general, the more stability children have, the easier it is for them when their parents separate. But if you want to stay in the house with the kids, your spouse refuses to leave and you simply cannot continue to live under the same roof together, you’ll have to get legal advice to find out if you can make your spouse move out.

Can you get a court order to make your spouse leave?

The Family Law Act allows the court to make an order giving a spouse “exclusive occupancy” of the family home. This rule applies to property that is owned and property that is rented. To get an order for exclusive occupancy, you must show the judge that:

• it's practically impossible for the two of you to remain together in the same home, and
• it’s more convenient for you to live there than for your spouse.

If there has been family violence or there’s a risk of it, the court can make an order that only one person will be allowed to live in the home. It can also set conditions for contact and communication.

Can you lock your spouse out?

Usually each person has as much legal right to be in the home as the other until a court decides otherwise or one of you agrees to move out. Simply not wanting to live with your spouse isn’t enough for you to lock your spouse out of the home. But if you fear that there might be violence, it may be reasonable to lock your spouse out until you can contact the police or get a protection order from the Court. But if the possibility of violence isn’t an issue, then locking out your spouse could backfire and your spouse could complain that you have treated them unfairly. If possible, get legal advice before locking out your spouse.

While a spouse can be the sole owner of property, that does not necessarily mean they can demand that the other spouse move out or force the other spouse out. Whether the spouse has the legal right to demand this will depend on the facts of your case. The police will often assist when it comes to third-party disputes over property, but when it comes to separations, they are reluctant to interfere and will tell you to see a lawyer.

Who should pay the household bills?

If you want your spouse to move out, or if you’re asking for an order for exclusive occupancy of the home, you should be prepared to pay the household bills, such as the rent or mortgage, utilities, taxes. But you can apply for support from your spouse to help you pay these bills. The court can also make a conduct order that requires one of you to pay the household bills.

If you and your spouse are both on title of your home, your spouse may be able to ask that the house be sold and the money from the sale kept in trust until your case is resolved.

These issues are complex, and you should speak to a lawyer before deciding what to do.

What if your spouse does not want to sell the house?

If you are joint owners of your family home and your spouse refuses to sell the home, you will likely need to sue to force the sale of the home. The Court could make orders about selling the home and how it is to be sold, including who the real estate agent should be. If the sale of the home will prejudice (harm) your spouse’s interest in the home, then a Court may not order the sale of the home or the order may be for a later date or after other issues in the case have been settled. You should speak with a lawyer about what is required to force the sale of the home and whether a court will make that order.

Should you get a separation agreement?

The best solution when a couple separates is to get an agreement, as long as the couple can get along well enough to negotiate a settlement or negotiate an agreement through their lawyers. A separation agreement puts in writing who will live in the house. It can also sort out other issues, such as if and when the house will be sold, how the children will be cared for, and whether support will be paid. Tet a lawyer’s advice before you sign a separation agreement, even one negotiated by a mediator, to get proper information about what the agreement means and how it affects your legal rights and obligations.

What if your spouse harasses you after you have separated?

If you are being harassed by your spouse and are concerned for your physical safety, you should call the police right away. If you are being harassed by your spouse, but are not concerned about your physical safety, you should speak with a lawyer to discuss the options available to you to respond to the harassment, which may include filing a police complaint, putting your spouse on notice about their behaviour, obtaining a court order restricting communication and contact, obtaining a court order allowing you to remain in the home without your spouse, or a protection order, etc. What option you choose will depend on the facts of your situation, and whether you have children.

Summary

Your first decision when you separate will be whether you need to live in separate homes, and if so, whether you or your spouse will move out. If you want to stay, but your spouse refuses to leave, you’ll have to go to court for an order giving you the sole right to live in the home if you can’t continue to live under the same roof. If you can agree on what will happen after you’ve separated, you can make a separation agreement.

More information

• The other Dial-A-Law scripts in this family law series
• JP Boyd on Family Law

[updated October 2018]

The above was last reviewed for legal accuracy by Samantha de Wit of Brown Henderson Melbye, and edited by John Blois.

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