Custody and remaining living in the home after divorce

What are your rights in Ontario if you are divorcing but want to remain living in the family home? Under the law, both spouses have equal rights to live in the home until a judge makes a determination that one or the other will stay there.

Because both spouses have the right to reside in the family home, neither has the right to sell, rent, mortgage or sublet it without first obtaining the other spouse’s permission. In cases where the lease is only in one name, or where only one party owns the home, this still applies.

When both spouses want to continue living in the marital home, mediation or arbitration can sometimes resolve the issue without leaving it up to the court to decide. Judges will usually award the right to live in the home to the spouse who has custody of the children. This keeps them from being disrupted as much as possible.

When custody becomes a disputed issue for a divorcing couple, if a mutually agreed upon parenting plan cannot be devised through mediation or negotiations, a judge will have to decide. In order for him or her to make the best decision, it may be necessary for the parties to be assessed and evaluated by psychologists or social workers.

The assessor will interview both parents and the children, if they are old enough to participate in the evaluation. He or she will then submit a written recommendation to the court regarding who is best fit to be the custodial parent.

Your divorce lawyer can provide you with information about a custody evaluation if one is needed.

Source: Ministry of the Attorney General, “What You Should Know About Family Law in Ontario,” accessed June 10, 2016

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