For every person, the family home is a special place, since you, your spouse and your children feel most comfortable in your family home. Your own home may be the most expensive and valuable thing of your life. According to section 18(1) of Family Law Act, R.S.O. 1990 ch. F. 3 (FA), as effective in Ontario “every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home“. According to section 19(1) of the FA, both spouses have an equal right to possession of a matrimonial home. Thus, you and your spouse have an equal right to stay in your home unless a judge decides that one of you must move out and order for exclusive possession according to the criteria as set out in section 24(3) of the FA.
Since both of you have a right to stay in your home, neither of you can use nor encumber the interest of the home, such as sublet it, rent it, sell it or mortgage it, without the other’s permission. When you separate, both of you may want to stay in the family home. If you cannot agree on who should stay in the family home, you can use lawyers, a mediator or an arbitrator to help you decide, or you may have to go to court to have the court decide who can stay in it.
It may be that, after the separation, neither of you will be able to afford to stay in your home.
If you have children, the person who has custody of the children will most often be the one who stays in the family home with the children. This helps children adjust to their new family situation in a place and neighbourhood that they already know.
Common law couples
Q Before we lived together, I owned a house. The house is still in my name and I still pay the mortgage. Marie pays for repairs and upkeep. If we split up, does she have a right to stay in the house?
A. Maybe. If a judge orders you to pay support to Marie or for your children, the judge can also decide that Marie can stay in the house. It doesn’t matter who owns the house. Marie can also ask you to pay her back for the money she spent on repairs or upkeep to the house. Remember, if you and Marie marry, your rights change.
Caring for your children
Parents are responsible for their children. When a family is living together, both parents share the responsibility for their children’s upbringing, education and everyday lives. This applies whether the parents are married or not.
When you separate, you have to arrange for the care of your children. They need a place to live, food and clothing. Most important, they need to feel loved and supported even though their parents are not living together.
You have a responsibility to keep your children safe. Unless your spouse is violent or threatening, the best thing you can do is to work out together how you are going to care for the children after you separate.
If you can work things out together, you can write out your arrangements in a parenting plan. A parenting plan can include when each parent spends time with the children and who makes major decisions about them. A parenting plan can be an informal arrangement between the two of you, or it can be part of your separation agreement or court order. If the arrangements are informal, they can be difficult to enforce.
If you cannot agree on who should have custody of the children, you can go to court to have a judge decide. The judge may ask for an assessment by a clinical investigator, social worker, psychologist or psychiatrist. The person will speak to each of you, to the children and sometimes to others. He or she will write a report for the court, recommending where the children should live and when they should see the parent who does not have custody.
The judge must think only about the children’s best interests when making a decision about custody. Let the judge know if your spouse has ever been violent or abusive to you or any children, because the law requires that the judge consider this issue. The judge will look at all information heard in court and will consider where the children are living right now. If they have been living with only one parent for a while and things are going well, the judge may not want to change that.
Custody: If your separation agreement or a court order gives you custody of your children, the children will live with you. You have the right to make important decisions about their care, their education, their religious instruction and their welfare — unless the agreement or court order says otherwise.
Joint Custody: Parents who have joint custody of their children share the right to make important decisions about their care. The children may spend half the time with one parent and half the time with the other or they may spend more time living with one parent than with the other. Both parents remain involved in making decisions about the children. For joint custody to work, parents have to be able to communicate with each other and to co-operate even though they are not living together.
Access: If you do not have custody of your children, you have a right to spend time with them unless the court decides that this is not in their best interests. Access arrangements can be written out in detail in a parenting plan, separation agreement or court order. The plan, agreement or order could say, for example, that the children would be with you every other weekend.
OR, your access arrangements could be open, letting you work out arrangements with the other parent in a more flexible way. It is difficult to enforce this kind of access arrangement.
You also have the right to receive information about your children’s health, education and general situation. You do not have a right to be part of the decision-making about these things, unless you have joint custody of your children or your separation agreement or court order says that you will share in making decisions.
A court may refuse you access to your children if there is a fear that you will harm them or harm the parent with custody, or if there is a fear that you will not return the children to the parent with custody.
Supervised Access: Where there are concerns for the safety of the children, and/or a parent, the parents can agree, or the court can require, that access visits with children be supervised. This means that someone else must be present when you visit with your children. Sometimes the parents can agree on a friend or relative who can supervise visits. Parents can also pay a professional, such as a social worker, to supervise visits. In most communities across Ontario, there are government funded Supervised Access Centres staffed by trained professionals and volunteers . On arrangement with Supervised Access Centre staff, families can attend the centre for supervised visits or for supervised drop off and/or pickup of the children for access visits.
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*source: attorney-general of Ontario website
Things to know about Family Law