The Browne v. Henley Crescent decision confirms that spouses in Ontario have protected tenancy rights in the matrimonial home, even if they aren’t on the lease.
The Matrimonial Home: Your Rights as a Non-Leasehold Spouse
In Ontario family law, few topics are as emotionally charged or legally complex as the “matrimonial home.” For many couples, that home is a rental. A common and terrifying question arises during a separation: “If my name isn’t on the lease, can my spouse or the landlord kick me out?”
For years, many spouses (predominantly women and survivors of domestic violence) were left in a legal “no man’s land” when the spouse listed on the lease vacated the unit or terminated the tenancy without their consent. The recent landmark decision by the Divisional Court, Browne v. Henley Crescent, has provided a definitive answer that strengthens the protections for non-tenant spouses across the province.
As a leading Ontario family law firm, we believe this case is a “game changer.” It bridges the gap between the Residential Tenancies Act, 2006 (RTA) and the Family Law Act (FLA), ensuring that a spouse’s right to a roof over their head isn’t erased by a signature on a piece of paper.
Deep Dive: Browne v. Henley Crescent
The Facts of the Case
The case involved the wife, who had lived in her matrimonial home since 2012 with her husband and their two children. Crucially, Ms. Browne was not a signatory to the original lease; her husband was the sole “tenant” named on the document.
In a situation all too common in high-conflict separations, the husband was removed from the home following an incident of domestic violence. Following his removal, he gave notice to the landlord to terminate the tenancy. His intent was clear: to absolve himself of further rent obligations and, effectively, to leave his wife and children without a home.
The Landlord’s Position
The landlord viewed this as an opportunity. Under Ontario’s “vacancy decontrol” rules, when a tenancy ends, a landlord can raise the rent to whatever the market will bear. The landlord argued that Ms. Browne was a mere “occupant” or “roommate,” not a tenant. Because the only named tenant (the husband) had given notice, the landlord sought an eviction order to re-rent the unit at double the previous price.
The Legal Journey: From the LTB to the Divisional Court
The Landlord and Tenant Board (LTB) initially issued conflicting rulings. While one adjudicator recognized Ms. Browne as a tenant, a subsequent review by the Board set that aside, favoring the landlord’s narrow interpretation of the lease.
However, the Divisional Court in 2026 reversed the LTB’s decision. The Court’s ruling focused on three critical legal pillars that every Ontario resident must know:
- Remedial Interpretation: The Court used the Rizzo & Rizzo Shoes principle, stating that the RTA is “remedial legislation” meant to protect tenants. It should be interpreted broadly to achieve its goal of housing stability, not narrowly to benefit landlords.
- The “Real Substance” Rule (Section 202): Under Section 202 of the RTA, the LTB is mandated to look at the “real substance” of the relationship. Ms. Browne paid rent, dealt with maintenance issues, and lived there for over a decade. In “real substance,” she was a tenant.
- Spousal Protection (O. Reg. 516/06): The Court clarified that Ontario Regulation 516/06, s. 3(2) explicitly includes a spouse as a tenant if the named tenant vacates the unit without giving proper termination notice. The Court went further, ruling that even if notice was given by one spouse, it cannot unilaterally terminate the other spouse’s right to stay in the matrimonial home.
Why This Matters: Your Legal Rights
Here are the core concepts that Browne v. Henley Crescent solidified:
- The Definition of a “Tenant” is Expansive
In Ontario, you don’t necessarily need a written contract to be a tenant. If you reside in the unit as your principal residence, pay rent, and the landlord treats you like a tenant (by responding to your repair requests, for example), you may have “implied tenancy” rights.
- Protection for Survivors of Domestic Violence
This case is a significant victory for domestic violence survivors in Ontario. It prevents an abusive spouse from using the lease as a weapon to cause homelessness. If you are a survivor and your spouse has left or been removed from the home, Browne v. Henley ensures you have the right to remain, provided you can cover the rent.
- Avoiding “Bad Faith” Evictions and Rent Hikes
Landlords often use a change in family status to trigger an eviction so they can bypass Ontario rent increase guidelines. The Court in Browne was clear: the landlord’s desire to “double the rent” does not override a spouse’s right to security of tenure.
Navigating the Intersection: Family Law Act vs. Residential Tenancies Act
To understand the full impact of the case, we must look at how it interacts with the Family Law Act.
The Matrimonial Home Under the FLA
Under Section 19 of the Family Law Act, both spouses have an equal right to possession of the matrimonial home. It does not matter whose name is on the deed or the lease. This right is “personal,” meaning it exists between the spouses.
The Conflict
The problem historically occurred when the Residential Tenancies Act (which governs the relationship between the landlord and the “tenant”) clashed with the Family Law Act (which governs the relationship between the “spouses”). Landlords would argue, “I don’t care about your family law rights; the lease says only the husband is the tenant.”
The Resolution in Browne v. Henley Crescent
The Divisional Court has effectively harmonized these laws. By recognizing the spouse as a tenant under the RTA, the Court ensured that the “equal right to possession” guaranteed by the FLA has a practical, enforceable mechanism against third-party landlords.
Key Legal Principles for Tenants and Spouses
For those involved in matrimonial home disputes in Ontario, the following principles from the 2026 decision are now law:
- Broad Definition of Tenant: A “tenant” includes a person who is the spouse of a tenant, even if they aren’t on the lease, if the named tenant vacates and the spouse remains.
- Anti-Eviction Protection: A landlord cannot use a “Notice of Termination” signed by only one spouse to evict the remaining spouse from a matrimonial home.
- Rent Control Continuity: Because the remaining spouse is considered a “tenant,” the landlord cannot raise the rent to market rates. The tenancy continues under the existing terms and the Ontario Rent Increase Guidelines.
- Landlord Consent is Secondary: While landlords prefer to vet every occupant, the law provides an automatic “statutory” tenancy to spouses in these specific circumstances to prevent homelessness.
Practical Strategy: What to Do if You Are at Risk of Eviction
If you find yourself in a situation similar to Ms. Browne, immediate steps are required to preserve your rights:
- Do Not Vacate Voluntarily
If your spouse moves out and the landlord tells you that you have no right to stay, do not leave. Under Browne v. Henley Crescent, you have a legal argument to remain. Once you vacate, it is much harder to regain possession.
- Notify the Landlord in Writing
Send a formal notice to the landlord stating that the unit is your matrimonial home and that you are asserting your rights as a spouse under the Residential Tenancies Act and the Family Law Act. Reference the case to show them that you are informed of the latest case law.
- Document Your “Real Substance”
Gather evidence that you have lived in the unit as your primary residence. This includes:
- Utility bills in your name.
- Government ID showing the address.
- Emails to the landlord about repairs.
- Proof of rent payments from your bank account.
- Apply for Exclusive Possession
In high-conflict separations, your lawyer may apply to the Ontario Superior Court for an Order for Exclusive Possession under s. 24 of the FLA. This court order can be served on the landlord and the LTB to provide an airtight defence against eviction.
Checklist: Are You a Protected Spouse?
If you are concerned about your housing status following a separation, ask yourself the following:
- Is the unit your principal residence? You must actually live there.
- Are you a “spouse” as defined by law? This includes married couples and those in common-law relationships (usually 3+ years of cohabitation or having a child together).
- Have you been contributing to the household? Paying rent or communicating with the landlord helps establish the “real substance” of your tenancy.
- Has your spouse attempted to “terminate” the lease? If so, you need to act quickly to assert your rights under the Browne precedent.
How Our Ontario Family Law Firm Can Help
Legal disputes involving your home require immediate, expert intervention. A top-rated family lawyer in Ontario can provide the “gatekeeping” necessary to prevent a wrongful eviction.
Strategic Litigation
We don’t just file paperwork; we build a case based on “real substance.” We gather evidence of your residency, rent payments, and communications to ensure the LTB or the Superior Court sees you as a protected tenant, not a guest.
Negotiating with Landlords
Often, a landlord simply needs to be educated on the current law. By presenting the Browne v. Henley Crescent decision early, we can often stop eviction proceedings before they even begin.
Integrated Legal Support
Because we specialize in both divorce and property division and have deep knowledge of the Residential Tenancies Act, we provide a holistic approach. We ensure that your housing stability is a priority during your spousal support and asset division negotiations.
Protect Domestic Violence Survivors: Many cases like Browne involve a power imbalance. We use the law to ensure the “leaver” cannot use the lease as a tool of financial or domestic abuse.
Conclusion: Securing Your Future in the Family Home
The decision in Browne v. Henley Crescent is a landmark victory for housing stability in Ontario. It ensures that the definition of a “home” is not limited by the names on a contract, but is instead defined by the reality of the family that lives within its walls.
For spouses who are not on a lease, this case provides the legal “teeth” needed to fight back against bad-faith evictions and rent gouging. However, the window to assert these rights can be small. Landlords move quickly, and if you do not respond to an N11 or L2 notice with the correct legal arguments, you risk losing your home.
As experts in Ontario family law and residential tenancies, we have the experience to apply the Browne precedent to your specific situation. We understand the stress of separation, and we know that your home is the foundation of your recovery.
DISCLAIMER: The information provided in this blog is for general informational purposes only and does not constitute legal advice. No attorney-client relationship is established through this writing. You should consult with a qualified attorney for advice tailored to your specific situation. The lawyer and their firm disclaim any liability arising from reliance on this blog or any other content on this website.