If you are facing domestic violence, you do not have to leave your home. Under the Ontario Family Law Act, a judge can grant an “Exclusive Possession Order” on an urgent, Ex Parte basis, forcing an abusive spouse out of the house within a matter of days.
When living with an abusive partner, the most dangerous time is often when you decide to end the relationship. Many victims mistakenly believe that because both names are on the mortgage or lease, they are the ones who must flee to a shelter.
In Ontario, the law recognizes that uprooting a victim and their children is unjust. Under the Family Law Act, married spouses have an equal right to stay in the matrimonial home. However, in cases of domestic violence, a judge at the Superior Court of Justice can grant an Exclusive Possession Order, legally evicting the abusive partner. 🚨
Whether you live in a house in Mississauga, an apartment in Toronto, or a rural property in Ottawa, an Exclusive Possession Order instantly changes the locks in the eyes of the law. Because navigating the court system during a crisis is overwhelming, most survivors rely on an experienced family lawyer to file these urgent motions safely.
Step-by-Step Process in Ontario
Getting a spouse legally removed from the home requires presenting clear, convincing evidence to a judge that living together is an immediate threat to your safety or the safety of your children.
Step 1: Prioritize Immediate Safety
Before filing any legal documents, your physical safety is the absolute priority. If you are in immediate danger, you must call 911. 📞
If the police arrest your spouse for domestic assault, the criminal court will usually release them with strict bail conditions that forbid them from returning to the home. This provides an immediate, temporary shield while your lawyer works on the longer-term family court orders.
Step 2: Retain a Family Lawyer
Securing an Exclusive Possession Order is a highly technical legal process. You generally need a lawyer who handles high-conflict family law litigation.
Your lawyer will help you gather evidence of the abuse. This includes police reports, photographs of injuries or property damage, threatening text messages, and statements detailing a history of controlling behaviour.
Step 3: Draft the Ex Parte Motion
Normally, you must give the other side notice before a court hearing. However, warning an abuser that you are trying to evict them can trigger extreme violence. ⚠️
To protect you, your lawyer will file an “Ex Parte” (without notice) urgent motion. They will draft a sworn affidavit detailing the abuse and explaining exactly why the court must act immediately without warning your spouse.
Step 4: The Urgent Court Hearing
Your lawyer will appear before a judge at the Superior Court of Justice, usually within 24 to 48 hours of filing.
The judge will review your affidavit. Under the Family Law Act, the judge considers the best interests of any children, the financial position of both parties, any written agreements, and any history of violence. If the judge agrees you are in danger, they will sign the Exclusive Possession Order immediately.
Step 5: Enforcing the Order with Police
Once the order is signed, you do not hand it to your spouse yourself. The order is given to the local police department (such as the Toronto Police Service or the OPP). 👮♀️
The police will arrive at the matrimonial home, serve the order on your abusive spouse, and physically escort them off the property. The spouse will typically be given a few minutes to pack essential items like medication and work clothes. You can then legally change the locks.
How Much Does it Cost in Ontario?
Filing an urgent motion in family court is a rapid, intense legal process, which makes it costly unless you qualify for Legal Aid Ontario. 💰
- Court Filing Fees: $0 to $181 CAD (Fees are often waived by the court in domestic violence situations).
- Lawyer Fees (Urgent Motion): $3,500 to $10,000+ CAD (Drafting complex affidavits overnight and attending emergency hearings requires significant legal hours).
- Locksmith Fees: $150 to $300 CAD (To change the locks immediately after the spouse is evicted).
| Legal Consideration | Impact on the Judge’s Decision | Is it Mandatory? |
|---|---|---|
| History of Violence | Heavily favors granting the order to protect the victim. | Yes (Crucial for an urgent Ex Parte order) |
| Presence of Children | Judges strongly prefer keeping children in their familiar home. | No (But makes the case significantly stronger) |
| Whose Name is on Title | Irrelevant. Both married spouses have an equal right to possession. | No |
How Long Does the Process Take?
In cases involving active domestic violence, the family courts in Ontario move very quickly. ⏱️
Once your lawyer finishes drafting the affidavit, an urgent Ex Parte motion can usually be heard by a judge within 1 to 3 days. After the order is granted, the police will execute it on the same day. However, within about 14 days, the court will hold a “return motion” where the abusive spouse gets a chance to argue their side, and the judge will decide whether to extend the eviction until the final divorce trial.
Frequently Asked Questions (FAQ)
Does an Exclusive Possession Order mean I own the house?
No. It only grants you the legal right to live there temporarily. The actual financial ownership and equity of the home will be divided later during the overall property equalization process.
Can common-law partners get an Exclusive Possession Order?
Generally, no. The Family Law Act provisions for the “matrimonial home” only apply to legally married spouses. However, common-law partners can achieve a similar result by applying for a Restraining Order that prohibits the abuser from coming within 500 metres of the residence.
What happens if the abuser tries to break back in?
If the abuser returns to the property, they are in breach of a strict court order. You must call 911 immediately. They can be arrested and criminally charged with mischief and breaching a court order.
Do I have to pay all the bills if they are evicted?
Not necessarily. Your lawyer can ask the judge to order the abusive spouse to continue paying their share of the mortgage and utilities as part of an interim spousal support or child support order.
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