Separation in Canada- Legal rights

In Canada, if a wife decides to separate, and they share a house and two children, can the wife ask the husband to move out, and if so, what rights does he have?

And no, this really is for a friend…:wink:

Of course the wife can ask the husband to move out. The wife could also ask the husband to fly to Mars or to enter himself into the Kentucky Derby.

As to whether or not the wife can FORCE the husband to move out, which I think is what you are getting at, the answer is no, no more so than he can force her to move out. If things got to the point that the police had to come make the peace, experience suggests they would ask the husband to find another place to stay just to keep things civil, but the wife can’t make a man leave his own home, or vice versa.

To read your paragraph correctly, if the WIFE decides to separate, I would think she should be the one leaving anyway. And vice versa.

Yes, but there are young children involved, and the father can’t look after them and work. Now if the house is in her name, is the only way to do it to get the police involved? That sucks for the kids.

Either party could ask the court to make an order for interim (temporary) and permanent possession of the home while waiting for the overall court case between the two of them to be heard. Often the grounds for making such a request are that the kids need the stability of remaining in the same physical home in which they have been living, and the parties are driving each other nuts to the point that they have emotionally separated and should not have to suffer by being forced to reside together, so whomever is providing most of the daily care and control of the kids should remain in the home with the kids, while the other should find another place to live at least until the court figures out who should get what for custody, child support, spousal support and division of property. No police involvement is required for this.

Often such a request might be countered by the other side, often by way of a request for an order for partition and sale of the home, on the grounds that there is not enough money to run two residences without selling the home and moving the kids to somewhere less expensive. (And if there has been or is ouster, a claim for occupation rent would also be made by the party that was forced to move out.)

If there is any nastiness, a restraining order can be sought without necessarily involving the police.

Hardball? Use any evidence of a party being hot under the collar to get that party tangled up in the criminal system, and then at the same time use this to get the family court to make a temporary restraining order without waiting for the party to tell his or her side. That will get the party out of the house and put the other party in a good position to argue in a regular motion that he or she should remain there with the kids and receive at least interim child support and/or interim spousal support. When playing hardball, full committent is required, and you must hit with everything you have as hard and as quickly as possible, and then keep up maximum pressure until the other side caves in by having been financially and emotionally destroyed.

A general rule of thumb is that if a party is not willing to work toward a mutually agreeable settlement, or is abusive, then play hardball rather than shilly shally around.

Playing hardball costs money and is extremely stressful. Quite frankly, once a middle class couple has battled it out, frequently the kids are scarred for life, and the parents are depressed, emotionally wrung out, and at or near bankruptcy.

Smart couples will use cousellors and lawyers to reach a fair deal for both parties without recourse to the courts.

Your friend should seek advice from a good family lawyer as soon as possible, so as to learn what her legal and practical options are, and so as to find out what she must do to try to place herself in as advantageous a position as possible before being caught up in negotiations or litigation. Often how a party positions him or herself prior to negotiations or litigation will make all the difference, so I strongly recommend that she get to a good family lawyer right away.

Also, civil law in Canada is provincial and each province has its family courts that will apply the relevant laws. But once it gets to police, courts, and lawyers, the situation is far gone that there are no good outcomes.

Rick Jay: here is the law in Ontario. http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/90f03_e.htm#P497_43610

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Other provinces have similar legislation that permit interim possession of a matrimonial home. For example, here is the law for British Columbia: http://www.qp.gov.bc.ca/statreg/stat/F/96128_01.htm#section65

Note that when it comes to equalization of net family property, the law differs between some provinces as to how to equalize interests the matrimonial home when the parties do not both hold title, or where one of the parties paid for the place prior to marriage.