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; and,
• 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 high level of conflict in your relationship after separation, and especially if there is a high level of conflict and you have children.

Who should move out?

If you have children, and you and your partner can talk about this issue, 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 the children?
• Will either one of you be keeping the home? Can either of you afford to keep the home?

It often makes sense that the person who will be caring for the children or keeping the home should stay in the house, and that the other person should leave.

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 partner 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, you might want to move out when your spouse isn’t home.

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

If you are both owners of 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. However, you should let your partner 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.

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

You may be worried that if you leave, this will affect who gets what. Don’t worry. If you have a right to a share in the property, you won’t 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 return.

If you are a married or an unmarried spouse, haven’t started a court case yet, and the property is only in your spouse’s name, considering filing a Land (Spouse Protection) Act entry against the home to prevent your spouse from selling the property 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 your interest in the property from creditors.

Can you take any of the 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.

What to take with you

If you plan to leave your relationship and you want your children to live with you, you’ll need to take the children with you when you move out. You should also take important documents and information, such as:

• 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 paystub
• Your CareCard and other health and dental insurance cards
• Your SIN card, your driver’s licence, your passport, and any immigration papers you may have
• You children’s birth certificates and passports
• Medications and prescriptions, including optometrists’ prescriptions
• Some but not all of your children’s clothing, furniture and personal belongings
• Copies of your partner’s financial information, such as paystubs, tax returns, company records and ledgers, bank accounts, investment accounts, and RRSP accounts
• A record of your partner’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 partner, you can usually take half the money in the account. Don’t take any more than half, and consider not taking anything if you have an income and your partner doesn’t or if payments for important family expenses like the mortgage come from the account.

What about debts?

If you have any joint credit cards with your partner, consider calling the bank and telling them that you are separating and asking them to cancel your 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 partner and you’re worried that your partner 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; or, require two signatures to withdraw more money. You should talk to a lawyer before doing anything that might look unfair.

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 partner 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 partner 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 two things:

that it’s practically impossible for the two of you to remain together in the same home, and that it’s more convenient for you to live there than for your spouse. Where there has been family violence or there’s a risk of family violence, the court can make a protection order that only one person will be allowed to live in the home. This applies to couples who qualify as spouses and to spouses who do not.

Can you lock your partner 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 partner isn’t enough for you to lock your partner out of his or her home. However if you fear that there might be violence, it may be reasonable to lock your partner out until the police can be contacted or a protection order can be obtained. But if the possibility of violence isn’t an issue, there’s a risk that locking out your partner will backfire and allow your partner to complain that he or she has been treated unfairly by you. If possible, obtain the advice of a lawyer before locking out your partner.

Who should pay the household bills?

If you want your partner 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 and the like. However, you can apply for an order for support from your partner, if you qualify as spouses, to help you with these bills and the court can also make a conduct order that requires one of you to pay the household bills

Be aware that if you and your partner are spouses or if you are both on title of your home, your partner 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.

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. 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. Make sure that you get 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.

For more information about separation agreements, refer to:

• script 115 on “Separation and Separation Agreements”
• script 124 on “Dividing Property and Debts”

Summary

Your first decision when you separate will be whether you need to live in separate homes, and if so whether you will move out yourself or try to have your partner move out. If you want to stay, but your partner 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.

[updated October 2014]

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The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

In family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however, it is possible to be separated but still live under the same roof. See "divorce, grounds of."

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

An agreement that requires payment for the use of property, under which the owner of property, like a car or an apartment, gives up the right to occupy and use that property in exchange for a sum of money. A "lessor" is the person who retains ownership of the property and receives money for its use. A "lessee" is the person who purchases the right of possession and use of the property.

Something which can be owned. See "chattels" and "real property."

Someone who is a spouse by the operation of a statute. Under the Family Law Act, unmarried spouses are people who have lived together in a marriage-like relationship for at least two years, or, for all purposes of the act other than the division of property or debt, who have lived together for less than two years but have had a child together. See "marriage-like relationship," "marriage" and "married spouse."

In law, a document demonstrating ownership of a thing. See "ownership."

A sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed.

A bank account owned by more than one person, normally with an equal entitlement to deposit or withdraw, with or without the consent of the other account holders.

In law, (1) a lawyer's bill to their client or a statement, or (2) a person's recollection of events.

The conditional transfer of the title to real property by an owner to another person in return for money given by that person as a loan, while retaining possession of the property. The party to whom title is given, the "mortgagee," usually a bank, is allowed to register the title of the property in their name if the person taking the loan, the "mortgagor," fails to make the required payments. See "encumbrance" and "real property."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

In family law, the dwelling occupied by a family as their primary residence. See "family property" and "real property."

A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government, or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.

An order available under the Family Law Act for the protection of a person at risk of family violence. Protection orders include orders restraining someone from harassing, contacting, or stalking a person, as well as orders restraining someone from going to a person's home, place of employment, or school. See "application," "ex parte" and "restraining order."

An agreement to transfer the ownership of property from one person to another in exchange for the reciprocal transfer of something else, usually money. See "agreement."

A phrase describing how property is held by one person for the benefit of another person who is ultimately entitled to the use or proceeds of sale of that property. Money held in trust is held in a lawyer's bank account on behalf of a client, on the lawyer’s promise not to use that money except as may be agreed.

A contract intended to resolve all or some of the legal issues arising from the breakdown of a relationship and intended to guide the parties in their dealings with one another into the future. A typical separation agreement is signed following a settlement reached through negotiation and deals with issues including guardianship, parenting arrangements, contact, support, the division of property, and the division of debt. See "family law agreements."

A resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer."