If you are suddenly evicted from your matrimonial home via an “ex parte” order in Ontario, you must obey it immediately to avoid arrest. However, you have the legal right to file an urgent motion to set aside the order and present your defence to a judge, typically within 14 days.
Being forced out of your own home with no prior warning is a traumatic and destabilizing experience. Under the Ontario Family Law Act, a spouse can apply for an “exclusive possession” order of the matrimonial home. In rare and extreme cases involving allegations of severe domestic violence, they can apply for this order ex parte. This Latin legal term means “without notice.” The judge heard only your ex-partner’s side of the story and determined that giving you notice would result in immediate danger to them or the children.
Unfortunately, some individuals misuse the ex parte process during high-conflict separations, weaponizing false allegations to gain the upper hand in property or parenting disputes. 📍 If you have been served with an ex parte exclusive possession order in cities like Toronto, Mississauga, or Hamilton, you must act with extreme urgency and precision. Violating the order is a criminal offence, but you are absolutely entitled to a fair hearing. Because the legal stakes are incredibly high, you should immediately search our directory for a specialized family law firm to defend your rights.
Step-by-Step Process in Ontario
Defending against an ex parte order is a fast-paced legal sprint. The family court system recognizes that an ex parte order is an extreme deprivation of your rights, so they automatically schedule a rapid follow-up hearing where you can defend yourself.
Step 1: Obey the Order Immediately
Your very first step is strict compliance. 🚨 Even if the allegations are entirely fabricated, the court order is a valid legal document. If you refuse to leave the property, or if you return to the home to argue, the police will arrest you for breaching a court order. Pack whatever essentials you are permitted to take and leave the premises peacefully. Your fight belongs in the courtroom, not on the driveway.
Step 2: Read the Affidavit Carefully
When you are served with the order, you will also be served with your ex-partner’s sworn Affidavit. This document outlines exactly what they told the judge to secure the eviction. Read it thoroughly and take notes. You need to identify every specific lie, exaggeration, or missing context regarding the alleged violence or coercive control.
Step 3: Retain a Family Lawyer and Gather Evidence
Do not attempt to represent yourself against domestic violence allegations. 💼 Hire an Ontario family lawyer immediately. Start gathering concrete evidence to disprove the claims in the affidavit. This includes text messages, emails, doorbell camera footage, witness statements, and GPS data that prove you did not commit the alleged acts or that your ex’s timeline is fabricated.
Step 4: File a Responding Affidavit
Your lawyer will draft a powerful responding affidavit. This document will tell your side of the story clearly and professionally, attacking the credibility of the ex parte application. You will ask the Superior Court of Justice to “set aside” or vary the exclusive possession order, arguing that the true facts do not meet the stringent legal test for removing you from the matrimonial home.
Step 5: Attend the Return Date Hearing
Every ex parte order comes with a “return date,” usually scheduled within 14 days of the initial order. 📅 On this date, both parties and their lawyers will appear before a judge. Your lawyer will argue that the initial order was obtained on false pretences and that you should be allowed back into the home, or at minimum, that a fair schedule for parenting time must be established immediately.
How Much Does it Cost in Ontario?
Fighting an urgent motion is one of the most expensive phases of family litigation because it requires immediate, intensive work from your legal team.
- Lawyer Fees (Urgent Motion): Retaining a lawyer to draft a response and appear at an urgent return hearing typically costs between $5,000 and $15,000 CAD.
- Court Filing Fees: Filing a Notice of Motion to set aside or vary an exclusive possession order of a matrimonial home is completely free ($0 CAD). Under O. Reg. 417/95, Ontario family courts do not charge any fees for filing motions or holding conferences, even for matters falling under Part II of the Family Law Act.
- Alternative Housing: You must budget for immediate temporary housing (hotels or short-term rentals), which can easily cost $2,000 to $4,000+ CAD per month in Ontario.
- Cost Awards: If the judge determines your ex-partner blatantly lied to obtain the ex parte order, the judge may order them to pay a substantial portion of your legal fees as a penalty.
How Long Does the Process Take?
The immediate legal response is very fast, but resolving the entire divorce is not. ⏱ An ex parte order is usually valid for a maximum of 14 days before the mandatory return date hearing. Your lawyer will have only a matter of days to draft and file your responding materials. At the return hearing, the judge may set aside the order immediately, modify it, or extend it until a full trial can be held. If the order is extended, you may be living outside of your home for 6 to 18 months while the broader separation agreement or trial is resolved.
| Type of Hearing | Notice Given to You? | Your Legal Right |
|---|---|---|
| Standard Motion | Yes (Usually weeks in advance) | Full time to prepare and respond. |
| Ex Parte Motion | No (Without notice) | Right to an urgent return hearing. |
| Return Date Hearing | Yes | Present evidence to set aside the order. |
Frequently Asked Questions (FAQ)
What if I own the house 100% in my name?
In Ontario, if the property is considered the “matrimonial home,” both legally married spouses have an equal right to possession, regardless of whose name is on the deed. The court can evict the sole owner to protect the other spouse.
Can I go back to get my clothes and work tools?
Do not go back alone. You must read the specific terms of the order. Often, you must arrange a specific time through your lawyer and have a local police officer present (a civil standby) to safely retrieve your personal belongings.
Will this order affect my parenting time?
Yes, significantly. If you are ordered to stay away from the home and the children reside there, you effectively lose access until a judge establishes a new parenting schedule at the return hearing. This is why immediate legal action is critical.
What happens if my ex lied to the judge?
Lying on a sworn affidavit is perjury. If you prove they fabricated the allegations, the family court judge will likely set aside the order, heavily penalize them with cost awards, and it will severely damage their credibility in future custody decisions.
Does an exclusive possession order mean I lose my equity in the house?
No. Exclusive possession only dictates who gets to live in the house right now. It does not change ownership or your legal right to receive half the financial value of the home when the assets are finally equalized and the property is sold.
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