Separation and divorce
Who can stay in the home after separation?
During a separation, cohabitation can become difficult. But how do you know who has the right to stay in the home and who has to leave? Here's what the law says, regardless of whether you're married or de facto partners.
Do you have a contract stating who can stay in the home in the event of separation?
Some couples draw up a contract to plan for what will happen with the home if they separate.
If this is your situation, you and your ex must comply with this contract. If one of you does not, the other can ask a judge to order compliance.
The parent who has custody of the children can stay in the home
When people separate, judges usually allow the parent who obtains custody of the children to stay in the home.
A parent can therefore be given the right to stay in the home even if he or she is not the owner or the tenant, whether or not the parents are legally married to each other.
To obtain this right, the parent who wants to stay in the home can file an "application for a safegard order" with the Superior Court.
This type of order is usually temporary, however.
Have you and your ex not yet determined who will have custody of the children? You can ask the judge to rule on the use of the home at the same time as custody of your children.
Did you know?
Since March 2021, the Divorce Act has used the term "parenting time" instead of "custody" and "access" to refer to the time the child spends with each parent. Therefore, you may find this expression in your legal proceedings or in judgments rendered by the courts.
The terms "custody" and “access” remain in effect for de facto spouses, however.
In other cases, the answer depends on your situation
If you don't have any children or if you share custody, your rights depend on your situation.
The sole owner generally has the right to ask the other person to leave.
The sole tenant generally has the right to ask the other person to leave.
To verify whether you're the tenant, read the lease to see if your name is on it. If you don't have a written lease, your tenant status depends on the verbal agreement with your landlord. You could also be the tenant if the lease was transferred to you.
You and your ex must reach an agreement because you both have the right to stay in the home.
You and your ex must reach an agreement because you both have the right to stay in the home.
To verify whether you're the tenant, read the lease to see if your name is on it. If you don't have a written lease, your tenant status depends on the verbal agreement with your landlord. You could also be the tenant if the lease was transferred to you.
Whatever your situation, the person who asks the other party to leave must be in good faith and not abuse his or her right. For example, the person who has to leave should be given reasonable notice so that he or she has the time to find new accommodations.
Get help to find common ground
During a separation, it is generally a good idea to try to find some common ground with your ex. A mediator can help.
You are entitled to a certain number of free mediation sessions.
If you can’t agree, you can apply to the court
If you’re unable to reach an agreement, you can ask a judge to decide. The type of legal steps you need to take may vary depending on your situation. Talk to a lawyer or visit a legal clinic to find the best strategy in your situation.
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ANG - L’information présente sur cette page ne constitue pas un avis ou un conseil juridique. Nous vous indiquons ce que dit la loi au Québec de manière générale. Pour obtenir un avis ou un conseil juridique concernant votre situation personnelle, consultez un professionnel du droit.
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