Can I force my spouse to move out because we are getting divorced?

Is it possible that you can force your spouse to move out because you are getting a divorce? Read on to see what family lawyer Larry Silverberg says.

Larry Silverberg, a family lawyer in Toronto, answers: In Ontario, the answer is not a simple yes or no.

The right to possession of the family residence or matrimonial home is governed by the Family Law Act of Ontario, which allows for either spouse to apply for what we call an Order for “exclusive possession,” if the circumstances of the case warrant such an Order.

It is necessary then to commence an Application in court involving property and support (and/or divorce) before a Judge can entertain such a request from either spouse for an Order for Exclusive Possession of their matrimonial home.

It does not matter whether the title to the home is held in the name of the husband or in the name of the wife or alternatively in joint tenancy between the husband and the wife. When it comes to trying to force your spouse to move out because you are getting a divorce, remember that in all situations where there is a matrimonial home, both the spouses have an equal entitlement to possession and he or she cannot be required to give that up unless a Judge orders otherwise.

According to the Act, the party requesting the Order for exclusive possession must satisfy a Judge by presenting proof as to one or more of the following grounds existing that would justify such an Order:

• Whether it would be best for the children to remain in the home with one of the parents rather than to be in the home with two parents whose behaviour might have a detrimental, physical or emotional effect on the children;
• Whether it is feasible financially for one of the spouses to obtain alternate living accommodations and whether it is much easier for the other spouse to obtain such accommodations.
• Whether there has been any agreement whereby one of the parties has already indicated they were going to leave the home.
• Whether the spouse has committed violence against the Applicant spouse or any of the children and evidence of any criminal charges being laid after a police attendance at the home. Although such an Order for exclusive possession can only be obtained in Ontario from a Judge from the Superior Court of Ontario, if the party requesting possession of the home hires a lawyer that has sufficient experience in family law, often that lawyer is able, in various circumstances where the children would benefit from one of the parents leaving, to work out an agreement with your spouse’s lawyer where he or she would leave voluntarily while you continue negotiating a final Separation Agreement.