Can I Stay in My Common-Law Partner’s Solely Owned Home After Separation?

When couples separate, the family home is likely one of the biggest assets to be divided, and the issue of who gets to stay in the home until it is properly divided or sold is one that arises often. This can be especially stressful when the circumstances of separation are fraught with emotion and conflict, making it impossible for spouses to continue to live under the same roof.

In Ontario, while section 24(1) of the Family Law Act enables married spouses to apply for exclusive possession of their matrimonial home even when the applying spouse does not have legal title to the home, the same relief is not available to unmarried couples under the legislative regime. This is because common-law partners, unlike married spouses, do not have a statutory right to possess the family home after separation; instead, the right of possession is incidental to ownership of the family home.

However, this does not mean that courts will categorically deny non-titled common-law partners exclusive possession of their family home. In a 2021 Ontario decision, Souleiman v Yuusuf, the court held that “Inherent jurisdiction enables a superior court to control its own process, [which] can include declining to enforce a sole owner’s right to sell a family home before trial, or declining to evict the non-owner in sole occupation of the family home before trial.” In this decision, Justice Mackinnon reviewed three cases where courts granted interim exclusive possession of a family home in favour of the non-titled common-law partner pending trial where (1) the non-owner is advancing a trust claim that, if successful at trial, could result in a declaration of ownership; and (2) the registered owner has already voluntarily vacated the family home. Justice Mackinnon went on to explain that these cases were based on the principle that meritorious claims should be adjudicated at trial first, before a sale or eviction can appropriately be ordered, and on the balance of convenience, including the consideration that the court not disturb the de facto occupation of the home.

Therefore, courts have drawn on their inherent jurisdiction and equitable principles to extend the relief of exclusive possession to unmarried couples in very specific fact scenarios, where there is a meritorious trust claim in relation to the home and the titled owner has voluntarily vacated the home.

In the family law context, trust claims for a family home typically arise where legal title to the home is transferred to one partner or purchased in their name for no consideration (i.e. economic value), or where there is unjust enrichment to the other partner in relation to one partner’s contribution to the acquisition, preservation, maintenance, or improvement of the home in dispute. These are complicated legal claims, and you should consult a family lawyer to assess the strength of your claim before moving or selling your family home.