Exclusive Possession of the Common-Law Home

Morrison v. Barbosa 2017 CarswellOnt 12197

This case illustrates a growing trend towards expanding the property rights of common-law couples.

Background

The parties began living together in a home in York, Ontario in January 2010. The respondent ex-boyfriend held sole title to the home. The applicant ex-girlfriend claims that the couple cohabited for 6 years, however the respondent claims that he moved out to attend veterinary school after only 3 years. Although he no longer lived in the house with her, the applicant brought evidence to establish that their relationship lasted until November 2015. She sought exclusive possession of the home so that she could continue to occupy it and he sought to have her removed from the property.

Analysis

In Ontario, married couples have rights to the marital home that common-law couples do not have over their shared home. Chief amongst these is a right to possession (occupation) of the marital home, even if he or she is not the title-holding spouse. Furthermore, neither spouse can sell or encumber an interest in the home without the consent and release of the other spouse, unless a court order permits otherwise.

A married spouse therefore can’t be easily evicted from the marital home, but a common-law spouse doesn’t have the same legislated protections. In this case, the applicant sought to exercise rights over the home that she shared with her ex in a manner akin to that of the marital home; she asked the court for exclusive possession and that his motion to have her expelled from the property be dismissed. Although the parties never married, there is some precedent to support a common-law claim for exclusive possession of the shared home in Joyce v. O’Neill.

The judge found that a trial was necessary in order to determine if there was a constructive trust or joint family venture. These are two legal mechanisms that would give the applicant property rights to the home even though she is not on the title. Therefore, Justice Moore would not make a determination on these issues. However, as an interim order, the applicant was granted exclusive possession of the home until trial. The judge based this decision off the ruling set out in Joyce, the fact that the applicant had called the property home for seven years and the medical evidence put forth by the applicant to illustrate that she would face hardship if forced to move.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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