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Do you know a woman who is being abused? A legal rights handbook

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What are exclusive possession orders?

You can apply to the family court for an order for exclusive possession of your home. This is a court order that says only one partner can stay in, or return to, the home and the other partner is not allowed on the property. If there are children, usually the order also says that the children are allowed on the property. The order is usually temporary. The court doesn't decide who owns the home or who rented it when deciding which partner can stay in it.

An order for exclusive possession does not stop your partner from contacting you at work or anywhere else. It also does not mean that he gives up his part of the ownership of the home.

What the judge considers

You or your lawyer must file an application in family court to request an order for exclusive possession. Before making the order, the judge will consider a number of things:

  • the best interests of the children, including the effect that a move might have on them, and how they feel about moving or staying
  • the children's attachment to the neighbourhood, including how long they have lived there, if they are in school, and their attachment to friends
  • any violence committed against you or your children
  • you and your partner's financial situations
  • any written agreements between you and your partner
  • the availability of other suitable and affordable accommodation

You can get an order for exclusive possession for a house or apartment. You can get it even if only your partner owns or rents it. The situation might be more complicated if you are renting and your name is not on the lease, however. Get legal advice. If you and your partner live in a rented home together, you will also need to get legal advice about your responsibilities and options when one of you leaves the home.

Orders for exclusive possession usually apply to partners who are legally married. If you are in a common-law relationship, it is harder to get an order for exclusive possession. It will partly depend on whose name is on the deed or lease. If you are in this situation, you should get legal advice.

Orders for women on reserve

First Nations women living on reserve can have a hard time getting some family court orders enforced. This is because different laws can apply on reserve lands. For example, the Ontario law on exclusive possession does not apply. Each First Nation might pass its own laws about family property rights. If they don't, there is a federal law about how to divide the value of a family home on a reserve and who can live in the home. For more information, see Part 8: Issues affecting Indigenous women.