• by Oriana Visser
Originally published in the OFLM 2024-09 edition
Outline
This article highlights a gap in the law that currently exists for common law spouses who wish to seek exclusive possession of the family home. Specifically, there have not been any recent legislative changes with respect to this issue, and appellate courts have not provided clarity either.
In the face of this gap, this article looks at the suggested remedies and themes found in recent case law, as well as relevant factors that courts assess when asked to determine a claim for exclusive possession.
Introduction
Common law spouses face a challenging legal battle if they wish to seek exclusive possession of the home. In the 2008 decision Joyce v. O’Neill, Justice Hackland, referring to non-titled spouses, commented that, “It remains an open question whether a common law spouse can obtain interim possession of the other spouse’s property” (2008 CanLII 68120, at para. 16).
More than a decade later, Justice Mackinnon observed the relevant case law and noted that, “These decisions essentially delay enforcement of the owner’s legal right to possession, rather than standing for authority that the court may create a substantive right to exclusive possession by use of inherent or equitable jurisdiction” (Souleiman v. Yuusuf, 2021 ONSC 6994 at para. 11).
Common law spouses who are also joint owners of the family home are further restricted in how they can seek exclusive possession, as both parties have an equal right to possession based on ownership. The only possible exception for common law joint owners is through using section 34 of the Family Law Act in a dependent’s claim for support (Souleiman v. Yuusuf, at para. 15).
Nevertheless, courts have made it clear as recently as last year that they will dismiss claims for exclusive possession by unmarried spouses. For example, in Hurdon v. Crooks, the parties were not married and thus their residence was not legally a matrimonial home. Fregeau J. thus found no jurisdiction in the Family Law Act to make an interim order for exclusive possession (Hurdon v. Crooks, 2023 ONSC 481 at para. 44).
Even married couples need to beware. Justice Kraft pointed out in Fatima v. Agha (2024 ONSC 1441 at paras. 40 – 42) that if there is a temporary exclusive possession order in place and the couple subsequently get divorced, that order would no longer be valid.
Given that Part II of the Family Law Act applies to married spouses, an interim order for exclusive possession would become invalid if Ms. Fatima is not a "spouse" as defined in s.1(1) of the Act…
Similarly, in Oppong Nketiah v. Oppong Nketiah (2021 ONSC 4807 at para. 6), the common-law wife’s right for exclusive possession of the home was extinguished as a result of the parties’ subsequent divorce. The parties were no longer spouses, and the wife could not rely on section 24 of the Family Law Act to claim exclusive possession.
Legislative background
Section 24 of the Family Law Act vests authority in the court to award exclusive possession of the matrimonial home to one spouse. Common law spouses are excluded from the protection that this remedy provides. In fact, no specific statutory authority exists enabling courts to grant exclusive possession of the family home to common law spouses akin to what section 24 provides for married spouses. Common law spouses seeking to obtain exclusive possession of the home must do so as an incident to other claims.
Only a handful of potential grounds to claim exclusive possession have been articulated in the case law. They are as follows:
- As a form of spousal support under s.34(1)(d) of the Family Law Act;
- As part of a pending trust claim;
- As an effect of a restraining Order under section 46(1) of the Family Law Act or section 35(1) of the Children’s Law Reform Act; and,
- As an effect of a parenting order. (Perks v. Lazaris, 2016 ONSC 1356 at paras. 27 – 28)
Despite potential pathways to an Order akin to exclusive possession, little authority exists for these Orders to be made on any of the grounds listed above. The case law remains extremely fact-specific, and success of claims varies widely based on ownership status of the home, current occupancy status of the home, strength of trust and spousal support claims, and the presence of parenting issues (such as incidences of family violence).
Recent case law
A sampling of recent case law considering common law spouses’ applications for exclusive possession or occupation of the home, demonstrates the wide variety of outcomes in cases dealing with this issue, demonstrating the effect of a lack of clarity from legislatures and higher courts.
Titled spouse successfully evicts non-titled spouse
In the recent case of Martelly v. Belgrave (2024 ONSC 2746), the Applicant common-law husband, who was the owner of the home but not living in the home, was successful in obtaining a Writ of Possession to evict the non-titled Respondent who remained in the home. However, the trial proceeded uncontested. The Respondent did not appear, and no claims or evidence were brought on her behalf. Justice Coats was unable to consider if the Respondent common-law wife had any trust claims or claims for support.
Non-titled spouse may remain in home pending trust claim
In Anthony v. Oqunbiyi (2023 ONSC 861), the non-titled common-law wife did not initially advance any trust claims as she sought an Order that the parties were married. While Justice Shaw found that the parties were not married, he declined to order the wife to vacate the property and found that she had reasonable justification to remain at the home.
The wife had been living in the property since 2017. She remained living there along with the parties’ two children and the husband post-separation. As she did not yet have the opportunity to advance a trust claim, the judge was unable to determine if such a claim would be unmeritorious. The wife was allowed to remain in the home on an interim basis, pending adjudication of this issue at trial.
Absence of meritorious trust claims
In Abdulaziz v. El Zahabi (2022 ONSC 2591), the court found that the mother, who was a non-titled spouse, failed to present meritorious claims based on unjust enrichment and resulting trust. However, the judge declined to order her to vacate the home, finding that the balance of convenience favoured her and the children remaining in the home pending its sale (at para. 41).
Absence of statutory authority
In Souleiman v. Yuusuf (2021 ONSC 6994), the court cited “absence of statutory authority” and declined to award exclusive possession to the mother who was a joint owner of the home. The parties had cohabited from 2016 to 2020 and had two children, ages two and four. The parties both remained living in the home after separation. The court found that both parties had a right to possession based on ownership and that no legal right existed for sole occupation “for which equity can provide a remedy” (at para. 18).
The court acknowledged that had the parties been married, the Applicant’s claim for exclusive possession would have been granted. Justice Mackinnon commented on this ‘gap’ in the law, stating:
Because of an absence of statutory authority these parties are left in the anomalous situation where both the motion for exclusive possession and the motion for sale are dismissed, and unless one party decides to move out of the family home in the interests of the children, they are likely to continue to be exposed to parental conflict and tension until their parents’ case is finalized. (at para. 24)
Earlier Cases of Note
Perks v. Lazaris, 2016 ONSC 1356
In Perks v. Lazaris, the parties had been in a 25-year common law relationship. They were the parents of three children, a 24 year old daughter and 10 and 12 year old sons. The father was solely on title to the home. An incident took place on the date of separation and the father moved out of the home. A nesting Order was put in place. The father brought a motion to terminate the nesting Order and evict his ex-spouse from the family home.
Justice McGee held that it is not a given that a non-titled spouse has no basis upon which to remain in the family home following separation and articulated the 3 main pathways: pending a trust claim, as a form of support, or as an effect of a restraining order.
The court relied on section 28(1) of the Children’s Law Reform Act and found that “In order to protect the children from exposure to adult conflict, I find it is necessary to prohibit the father from attending at the home.”
Interestingly, the Order did not specifically state that the non-titled spouse was granted exclusive possession, rather the judge ordered that the father be prohibited from attending within 250 metres of the home and terminated the nesting Order.
Akman v. Burshtein, 2009 CanLII 16574 (ON SC)
In Akman v. Burshtein, Justice Ferrier considered whether exclusive possession of the home should be ordered as a form of support. The parties had been in a common law relationship for at least 10 years, although the length of the relationship was disputed. Mr. Akman sought to sell the home, which he was no longer living in. Ms. Burshtein remained in the home. The parties did not have children.
The court relied on section 34(1)(d) of the Family Law Act (i.e. to may make an order with respect to the exclusive possession of a matrimonial home) and considered the factors set out in section 24(3) of the Act:
- The best interest of the children affected;
- Any existing orders under Part 1 (Family Property) and any existing support orders;
- The financial position of both spouses
- Any written agreement between the parties;
- The availability of other suitable and affordable accommodation; and
- Any violence committed by a spouse against the other spouse or the children.
Considering these factors, Ferrier J. declined to order exclusive possession in favour of Ms. Burshtein, finding that there were no children of the relationship, no existing orders, and that while the titled spouse was in a better financial position, this could be remedied through a monetary support Order.
Joyce v. O’Neill, 2008 CanLII 68120 (ON SC)
In Joyce v. O’Neill, the parties lived together in a common law relationship for approximately 22 years. The property was solely owned by Mr. Joyce. A domestic incident occurred, and Mr. Joyce was charged with assault. His bail conditions stipulated that he could not return to the home. Mr. Joyce subsequently moved into an assisted living facility for seniors.
Justice Hackland reasoned, on a balance of convenience basis, that Ms. O’Neill should be entitled to exclusive possession of the home. She had claimed interest in the property by way of constructive trust and a trial on the issues was pending. The house had been her home for many years, and it was unlikely that Mr. Joyce would be able to return to the home due to a decline in mental and physical health. Mr. Joyce also had considerable means and a number of options available to him, whereas Ms. O’Neill was entirely dependent on Mr. Joyce for support.
Practically Speaking
In addition to the issue of exclusive possession, there is always a risk that the opposing party may try to sell the home without consent against your client’s wishes. Raymond Goddard and Janice Ho summarized this issue in their 2018 CFLQ article titled Things to Consider When Dealing with Interim Property Issues (37 C.F.L.Q. 150). In their article, they write as follows:
If a spouse is not a registered co-tenant or a co-tenant in equity, he or she is not entitled to request partition and sale of the other party's property. Obtaining a copy of the PIN from the Land Registry Office early in the retainer is recommended, if not even at the first client meeting.
Where a married spouse is not a co-owner, his or her counsel should advise the spouse to file a matrimonial home designation on title. Where a common-law spouse is not a co-owner but may have a constructive trust claim or a joint family venture claim over the family residence, counsel should canvass this claim in as much detail as possible as early as possible. If the claim appears meritorious, then consideration should be given as to whether obtaining a certificate of pending litigation is required to protect the client's interests until a final determination at trial is made.
When advancing a claim for partition and sale, ensure that the relief is sought in the party's pleading as well as in the notice of motion under the proper statute, otherwise the client risks a denial of his or her request if it is not properly pled and therefore not before the Court. For common law spouses, the spouse must make a constructive trust or joint family venture claim over the family residence in addition to the request for partition and sale under the Partition Act in the action and in the motion in order for the Court to have jurisdiction. (emphasis added)
Conclusion
The case law articulates potential grounds for common law spouses to claim exclusive possession of the family home. These include as a form of spousal support under s.34(1)(d) of the Family Law Act, as part of a pending trust claim, as an effect of a restraining Order or, potentially, as an effect of parenting Order. However, it is clear that a significant gap remains and courts do not shy away from simply dismissing such claims for non-married spouses.
No remedy exists for common law spouses that is akin to what section 24 of the Family Law Act provides to married couples. The case law has made clear that common law spouses do not have an inherent right to exclusive possession and there is little authority to make such orders even under the grounds articulated above.
Common law spouses seeking to claim exclusive possession should be made aware that they must do so as part of alternative claims. Those alternatives include trust claims or claims for spousal support. Nonetheless, the case law is extremely fact specific in those situations, thus leading to a questionable chance of success.