How a Non-Titled Common Law Spouse May Obtain Interim Possession to their Spouse’s Solely Owned Property

By Kayleigh Pink, Associate Research Lawyer,
Lam Family Law*

Property and possessory rights under Parts I and II of the Family Law Act (“FLA”) do not apply to common law spouses. Therefore, where a non-titled common law spouse refuses to vacate the property after separation, the titled spouse is often able to obtain an order requiring the non-titled spouse to vacate the subject property.

While a common law spouse cannot rely on the FLA provisions for an order for interim possession, case law demonstrates that there are at least two ways in which a non-titled common law spouse may oppose a titled spouse’s motion to vacate and obtain interim possession to their spouse’s solely-owned property:

The courts have also granted common law spouses what is effectively an order for interim exclusive possession.

A Meritorious Claim to a Beneficial Interest in the Property

A non-titled common law spouse may obtain an order for interim possession (or, as is often the case, an order dismissing their spouse’s motion to vacate) by demonstrating that they have a meritorious claim to a beneficial interest in the property.

Morningstar v. Holley (2007) is a particularly instructive case on this issue. The parties had cohabited for 20 years. On the date of separation, the parties and their child (aged 13) resided in a property solely owned by the man. After separation, the woman and child continued to reside in the property. The man wished to sell the property, but the woman refused to co-operate with respect to any potential sale. Therefore, the man brought a motion to obtain exclusive possession of the property for the purpose of selling: Morningstar v. Holley, 2007 CanLII 2359 (ON SC), at paras 1-3 & 7.

Justice Henderson acknowledged that, prima facie, the man should be entitled to evict the woman at will. The woman had no legal interest in the property as title to the property was registered solely in the man’s name, and she could not acquire an interest in the property through the operation of Part II of the FLA because the parties were not spouses for the purposes of Part II: paras 4-5.

However, the woman was making an unjust enrichment claim that, if successful, could result in a court granting her an interest in the property. The court found that the woman’s unjust enrichment claim, for which she was seeking a constructive trust remedy, was not a frivolous one. The woman explained that she had evidence to show that she contributed money towards the acquisition of the property, and that she contributed money and money’s worth towards the maintenance of the property throughout the parties’ 20-year relationship: paras 6-7.

Given that the woman’s claim was, in part, for an interest in the property, the court found that it would be unjust to liquidate the property prior to the determination at trial of the woman’s interest in the property. The only reason the man wished to have possession of the property was to sell it, but the property should not be sold prior to trial. Therefore, Justice Henderson found there was no reason to order the woman to vacate the property at this time and dismissed the man’s motion for exclusive possession: paras 14-15 & 18.

In the more recent case of Anthony v. Oqunbiyi (2023), the parties resided together for a number of years (duration disputed) and had two children together. The woman believed that the parties were married, whereas the man sought a declaration that the parties were not married. The court found that the marriage was not valid: Anthony v. Oqunbiyi, 2023 ONSC 861 (CanLII), at paras 1 & 11-12.

The parties and their two children resided in a property solely owned by the man. The man sought an order that the woman vacate the home immediately. Since the parties were not married, they were not spouses as defined in s. 1(1) of the FLA and the property was not a matrimonial home. The woman had advanced a claim for equalization of net family property on the basis that she believed the parties were married. Justice Shaw presumed that, based on the its ruling that the parties were not married, the woman would now seek leave to amend her pleadings to seek an interest in the property by way of a “constructive claim” (i.e., an unjust enrichment claim with a constructure trust remedy): paras 2, 13-14, & 26.

At this stage, Justice Shaw could not say that the woman’s claim was “unmeritorious, particularly as she has not yet advanced a claim for an interest in the property based on the principle of constructive trust.” There was also conflicting evidence with respect to the financial contributions made by each party to the property. Accordingly, the court was not prepared to order the woman to vacate the property on an interim basis since her claim for an interest in the property should be adjudicated at trial: paras 24 & 27.

A Transfer of an Interest in the Property to Satisfy Support

Another way a non-titled common law spouse may successfully oppose a motion to vacate property is by seeking a transfer of an interest in property to satisfy a support order under s. 34(1)(c) of the FLA. However, this appears to be a less common approach: Family Law Act, RSO 1990, c F.3, s. 34(1)(c).

The court in Morningstar v. Holley (2007) considered this approach in the alternative. Justice Henderson noted that the woman was making a claim for retroactive spousal and child support. The court found that the woman’s case was not a frivolous one, as no spousal or child support has been paid since separation. Since the parties were spouses for the purposes of Part III of the FLA, it was open to the woman to argue that the retroactive portion of the support should be paid to her by way of a transfer of an interest in the property pursuant to s. 34(1)(c) of the FLA. The court found that the woman may be entitled to an interest in the property in this way as well: Morningstar v. Holley, 2007 CanLII 2359 (ON SC), at paras 11-13.

In Rare Circumstances, A Non-Titled Common Law Spouse May Obtain Interim Exclusive Possession

The court has confirmed that “There is no statutory authority to award exclusive possession of real property to an unmarried non-owner or joint owner.”: Souleiman v. Yuusuf, 2021 ONSC 6994 (CanLII), at para 5.

Nevertheless, there is case law where the non-titled spouse has obtained an order that, at least in practice, gives them interim exclusive possession. These cases are rare and often involve extreme circumstances, such as incidences of family violence, the non-titled spouse having limited ability to find alternate accommodations, or the titled spouse living far away from the subject property.

For example, in Joyce v. O’Neill (2008), the parties lived in a common law relationship for approximately 22 years. They resided together in a property owned solely by the man. In 2008, a domestic incident occurred which resulted in the police removing the man from the parties’ home. A term of the man’s bail was that he not return to the home or contact the woman. The man resided with his adult son, and then moved into a senior’s residence with assisted living capability: Joyce v. O’Neill, 2008 CanLII 68120 (ON SC), at paras 1 & 5.

The man’s counsel submitted that there was no basis for the woman’s claim to continue to reside in the property solely owned by the man because the parties were never married. Justice Hackland noted that the woman claimed an interest in the property by way of a constructive trust. Further, she was entirely dependent on the man for support. The man, on the other hand, was doing well in assisted living, would likely not be able to return to the property, at least not without a caregiver, and had considerable means. Therefore, pending the trial of this proceeding, Justice Hackland found that the woman should be permitted to retain exclusive possession of what had been her home for many years: paras 15-16.

In Morrison v. Barbosa (2017), the parties resided in a property solely owned by the man for approximately three years. After three years, the man moved out to attend university and then to move to Alberta. The woman remained living in the property during this time. When the parties separated, the man asked the woman to vacate the property, but she declined to do so. Subsequently, the man brought a motion for an order that the woman immediately vacate the property: Morrison v. Barbosa, 2017 CarswellOnt 12197 (WL), at paras 4-6.

The woman claimed that her extensive contributions to the maintenance and value of the property entitled her to a proprietary interest in the property and a monetary award would not afford satisfactory compensation to her. Justice Moore held that a determination of the woman’s trust claim required a trial: para 22.

Justice Moore also found that the property had been the woman’s home for seven years and, due to her medical conditions, she had limited ability to find alternate accommodations. As such, the woman would experience hardship if she were evicted. Further, the man did not provide evidence of any need to move into the property pending trial. Accordingly, the court granted the woman interim exclusive possession of the property pending further court order: paras 29-30.

*with thanks to Vanessa Lam for her suggestions and edits.