If you’re married, in a civil union or parental union, the home you live in can be considered a “family residence.” This legal protection is very important, especially if a conflict arises, or you decide to separate. It prevents someone from selling, renting or mortgaging the family residence without their spouse or partner’s consent, or court authorization.
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What is a family residence?
It’s your family’s primary home, where you do daily activities, like sleeping, eating and raising children. A family residence can be a house, condo, apartment, or any other type of housing that you own or rent.
A family residence is protected by law, but only for couples who are married, in a civil union or parental union. Common-law couples aren’t entitled to these protections.
Couples can only have one family residence. Other homes you may have together are considered secondary residences. For example, if you have an apartment in the city and a cottage where you spend a few weekends a month, only your apartment would be your family residence.
Protections if you own your family residence
If only one person in the couple owns the family residence, they can’t sell it, rent it, or even mortgage it in some cases, without the other person’s consent or court authorization.
The rules and enforcement options are different depending on these factors:
- the size of the building where the family residence is located,
- whether a declaration of family residence has been registered. This is an official document that publicizes the protection of your family home and allows you to enforce your rights. To learn more about how declare a family residence (French only) and why make a declaration of family residence.
The person in the couple who owns the building can’t sell or mortgage it, or rent the unit where the family lives, without the written consent of the other person.
If the owner doesn’t follow the rules, you can ask the court to do these things:
- cancel the transaction (if a declaration of family residence has been registered on the building or unit),
- award you compensation.
The person in the couple who owns the building can’t sell it, or rent the unit where the family lives, without the written consent of the other person.
If the owner doesn’t follow the rules, you can ask the court to do these things:
- order the new building owner to rent you a unit in the building (if a declaration of family residence has been registered on the unit),
- award you compensation.
Protections if you rent your family residence
If you rent your family residence, you must tell your landlord that it’s your family residence to benefit from protections, ideally in writing. Either person in the couple can notify the landlord, or you can write it on the lease when you sign.
As soon as you notify the landlord, the protections apply. Even if there’s only one person on the lease, that person can’t sublet the unit, transfer the lease or end the lease without the other person’s consent or court authorization.
If the person on the lease tries to transfer the lease or sublet the unit without your consent or court authorization, you can ask the court to intervene. The court will decide who can stay in the home.
The family residence might still be protected after you separate
Your family residence is protected by law as long as the family continues to use it as a primary residence. Protections don’t automatically end if you separate, or if one of you moves out. It depends on your situation and your intentions. For example, if you separate, but one of you continues to live in the home with your kids, the protections can still apply.
The family residence is no longer protected when:
- the family no longer lives there, or
- a couple clearly shows they no longer intend to live there.
Whether a home is a family residence varies depending on the circumstances. If you’re not sure whether your home is still considered a family residence, you can consult a lawyer or notary.