More than ever, unmarried (or "common law") couples are living in conjugal relationships that are indistinguishable from marriage. Many of these couples will be surprised to learn that, in Ontario, they do not enjoy the same rights and obligations as their married counterparts upon separation.

In a previous post, I wrote about the difference between married and unmarried couples as it relates to the division of sale proceeds from a jointly owned home. Another issue confronting common law couples is the lack of statutory protections regarding the "matrimonial home" afforded to married spouses.

Generally, property owners are entitled to do what they wish with their property, and correspondingly prevent others from interfering with this right. However, special rules with respect to the matrimonial home provide exceptions to this general rule.

Matrimonial Home – Exclusive Possession

Ontario's Family Law Act defines a matrimonial home as every property in which a person has an interest that was ordinarily occupied by the spouses at the time of separation. In practice, this generally refers to what many people consider the family home.

Regardless of ownership, both married spouses are entitled to possession of the home, preventing one spouse from evicting the other, or changing the locks, by virtue of being the sole owner. The sole owner is further prevented from unilaterally selling or encumbering the home without the other spouse's consent, or a court order to this effect. Pursuant to section 24(1) of the Act, the non-title holding spouse can even apply to a court to force the title-holding spouse out of the home for a period of time, such that he or she has the exclusive right to occupy the home. This is referred to as "exclusive possession" of the matrimonial home.

Common Law Couples – Matrimonial Home?

Ontario law does not recognize matrimonial homes for common law couples. As such, the sole owner is free to do as she wishes with her property, and may evict the other spouse or sell the home as she pleases. A non-title spouse who refuses to leave may be liable for trespassing.

In limited circumstances, however, some remedies akin to exclusive possession orders are available to common law couples.

In Morrison v Barbosa CarswellOnt 12197 (Ont. S.C.J.), the parties cohabited in a property solely owned by the ex-boyfriend for six years. Following separation, the ex-girlfriend remained in the home for almost two years while the ex-boyfriend moved out of the province. During this time, the ex-girlfriend continued to make both financial and personal contributions to the property, and directly to the ex-boyfriend. The ex-boyfriend brought a motion to evict the ex-girlfriend from the home so he could list it for sale, while the ex-girlfriend brought a motion to remain in the home.

Although the parties were unmarried, the judge found there was case law to support the ex-girlfriend's request for exclusive possession of the home. Namely, the ex-girlfriend claimed that she held a proprietary interest in the home by virtue of a "constructive trust" or a "joint family venture". Further, the ex-girlfriend suffered from several medical issues that would be exacerbated by her eviction from the home. The motions judge ultimately decided that these issues required a full trial, and awarded the ex-girlfriend exclusive possession of the home pending the final resolution of the case.

While there may be a general shift towards expanding rights for common law couples, special caution should be had with the foregoing. The facts of the case are highly specific, and there is no appellate authority confirming the status of this area of the law. Unmarried couples would be wise to address these issues in a cohabitation agreement – seeking legal advice is always recommended to curtail future disputes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.