Leaving the Family Residence After Separation

Property Rights?

People often think that in the course of separating from their partner, common-law or married, if they leave the family residence, they give up property rights. With rare exception that is never the case. Far more insidious are the consequences of leaving without taking the children with you.

Effect on the Status Quo

Upon separation, if a parent departs from the family residence (whether married or unmarried but cohabiting) without their children and resides elsewhere, doing so can substantially diminish the strength of their argument where they seek a court order for the children to live with them the majority of the time, or even equal time. They may similarly lose substantial leverage if negotiating outside of court.

While the law has evolved substantially in recent years, the status quo factor with respect to the children’s primary residence (among other children’s issues) remains a central guiding principle for judges in determining the best interests of children. Simply put, the courts tend to favour non-intervention in children’s living and visitation arrangements, and parents’ decision-making for the children, where the arrangements in place appear to be working well: the “status quo”.

If a parent leaves without the children and remains away for some period of time, that parent acquiesces to a change in the status quo from both parents previously parenting the children together, to the parent remaining in the family home with the children becoming, by default, the de facto “primary parent”.

As a result, unless you take the children with you, family legal counsel should generally advise a parent not to leave the family home until such matters have been determined by court order, or where there is a written agreement with the other parent (in proper form, which means with independent legal advice and Certificates of Independent Legal Advice for each party attached).

Be Cautious When Leaving the Home

If a parent wishes to leave the home with the children, they must be very cautious in doing so. To ensure no misstep, this must be done with proper legal guidance and your counsel writing the former partner or their legal counsel specifying what has happened, where the children are, and proposing visitation for the other parent (or at least expressing willingness to discuss a schedule and facilitating such visits). Of course, taking this option would require the departing parent has the means to provide another place for them and the children to live or perhaps some family with room to house them all, or at least on a temporary basis.

Should you be unable or otherwise unwilling to choose that option, you should almost always be advised not to depart from the home without the children (barring abusive and certain other extenuating situations). The unfortunate consequence of this is that you are then forced to reside with someone with whom you have already de facto separated, and may be very much at odds with, until such time as the matter has been finally determined. This is a very difficult and trying situation for most people.

Nesting Arrangements

An alternative to residing together is what is often referred to as a “nesting” arrangement or agreement. Here, the parties shuffle in and out of the home so that only one parent is in the home with the children at a time. Each has another place to stay when not in the home. This can be easier on the parties financially and notionally easier on the children psychologically. However, it is not without its own conundrums: walking into your former partner’s mess or changes in the home can easily cause more strife, making it even worse for the children. As such, it should be advised that this is never a good long-term solution and rarely optimal even in the short term. As one judge notably stated: “Nesting agreement? That’s for the birds!” Only in the rarest of circumstances should this be recommended as a solution, albeit a temporary one.

The above is the current state of Ontario law. The law on this topic varies from province to territory. Be sure to contact a family law practitioner within your jurisdiction to ensure you have all the information you need.

The abiding mantra is always the same: Avoid serious, and sometimes irreversible, missteps in the process of separation and divorce. Retain a good family lawyer early on in the process, advisably prior to entering into any relationship.

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Please be advised that all articles written on this website are for informational purposes only and do not constitute legal advice on any subject matter. The information contained within these articles is subject to change at any time and should not be acted upon without previous consultation with legal counsel. 

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