Getting exclusive possession of the matrimonial home in a high stress environment will likely require litigation unless the parties can agree. This blog post will examine a few cases where one party obtained exclusive possession of the home as a result of a high stress environment in the home. It is important to note that possessory rights are separate from ownership rights. Just because one party may receive an exclusive possession order, does not mean the other spouse loses their ownership interest.
The jurisdiction is found in section 24(1)(b) & (2) of the Family Law Act: direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part. The court may, on motion, make a temporary or interim order under this clause.
An order for exclusive possession is based on the following provisions:
(3) In determining whether to make an order for exclusive possession, the court shall consider,
(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children. R.S.O. 1990, c. F.3, s. 24 (3); 2014, c. 7, Sched. 9, s. 4.
(4) In determining the best interests of a child, the court shall consider,
(a) the possible disruptive effects on the child of a move to other accommodation; and
(b) the child’s views and preferences, if they can reasonably be ascertained. R.S.O. 1990, c. F.3, s. 24 (4).
Courts have repeatedly noted that this test is a high bar, and that most conduct does not amount to one party retaining exclusive possession of the home. In E.S. v. A.S., 2020 ONSC 824, the court notes:
The presence of tension in the matrimonial home was more recently addressed in Hollinger v. Wang, 2019 ONSC 4807 (Ont. S.C.J.), where Charney J. observed, at para. 29:
Unpleasantness, inconvenience and even some tension are expected, perhaps inevitable, consequences of living separate and apart under one roof, but s. 24(3) does not include any of these considerations as stand-alone factors.
In Menchella v. Menchella, 2012 ONSC 1861 (Ont. S.C.J.), McGee J. provides a helpful overview of the legislative intention behind the exclusive possession provisions of the Family Law Act and gives context to the behaviour that is to be assessed:
An order for exclusive possession is dramatic in effect, and highly prejudicial to the dispossessed spouse. An order for exclusive possession should not be made on a motion where there is conflicting evidence that requires findings of credibility that are only available at trial.
The legislature clearly intended spouses and their children to be able to maintain the shelter and consistency afforded by a matrimonial home while the issues arising from a marriage breakdown are determined. Section 24(4) speaks directly to maintaining a stable residence for children whose parents have separated. The statutory exception to continued possession of a home arises primarily in circumstances in which continued joint occupation is a potential or real threat to the safety or wellbeing of a child or a spouse.
The best interests of a child are paramount in determining an order for exclusive possession. Bortolotto v. Bortolotto, [2002] O.J. No. 2068 (Ont. Master). Mother's counsel places before me the usual line of cases in which a primary care parent has been granted exclusive possession. These cases have in common findings that:
(a) there is conflict in the home that is adversely affecting the child;
(b) the stress in the home has become unbearable and leaving the home would be disruptive to the children;
(c) it is not in the children's best interests for the parents to continue living under the same roof; and,
(d) an order for exclusive possession is otherwise justified.
In Manchella v Manchella, 2013 ONSC 965, the court reviewed some of the text messages from an earlier decision that constituted family violence. In other words, in rare circumstances, “violence” pertaining to exclusive possession of the matrimonial home via the Family Law Act, does not have to be physical violence.
The mother was granted interim exclusive possession in Williams v Williams, 2020 ONSC 3341. In this case, it appears that the father’s mental illness made it such that the mother would receive primary residence of the child. The court also found that it would be in the best interests of the child for the child to return to the matrimonial home. Consequently, the mother and the child got exclusive possession:
The evidence before me supports that the respondent has had some mental health challenges. He should be taking his anti-depressant medication. There are definite problems when he is not taking his medication. This became apparent in February and March 2020 when the respondent became physically ill with pneumonia and stopped taking his anti-depressant medication. This led to what can best be described as bizarre behaviour by the respondent which eventually led to the separation of the parties. This is acknowledged in paragraph 4 of the respondent's affidavit, sworn on May 19, 2020 in which he states, "I was unhappy in the marriage prior to that date, although my behaviour as a result of what I refer to as a 'snap' was the catalyst for ending our relationship."
Even the respondent's mother was concerned about the behaviour of the respondent. In the affidavit of Dianne Marshall, sworn on May 19, 2020, she states in paragraph 7 that she saw her son in early April and that "he was in a highly agitated state, but he was coherent." Ms. Marshall goes on in paragraph 8 of her affidavit to acknowledge that "I would agree that Matthew's mental state was not right. I don't think he was on his anti-depressants at that time."
It is important for Kiera to return to the home that is familiar to her and that she has resided in for the past two years. This is required to stabilize the situation for Kiera and to give her as much normalcy as possible in this difficult time in her life. Although I am sensitive to the respondent's desire to retain the matrimonial home to operate his business, a business venture does not take priority over what is in the best interest of a child. Kiera will be living primarily with her mother. It is in the best interest of Kiera that she return to live in her home.
The mother was granted exclusive possession of the matrimonial home in Burke v Poitras, 2020 ONSC 3162, primarily because of the father’s past abusive conduct which was confirmed by a criminal conviction:
Finally, I consider that the Respondent acted violently toward the Applicant. This violence on the part of the Respondent, confirmed by his guilty plea to the offence of criminal harassment, is what ultimately led to the Applicant leaving the matrimonial home over five years ago. The Respondent has had exclusive possession of the matrimonial home for the past five years not because of any agreement between the spouses, or any reasoned consideration of what was best for the children, but because the Respondent fled his abusive conduct. I am satisfied that this conduct was such that the continuation of joint cohabitation in the dwelling was not an option (see Menchella v. Menchella, 2012 ONSC 1861 (Ont. S.C.J.) at para. 16, and Gore v. Gore, 2016 ONSC 6831 (Ont. S.C.J.) at para. 18).
Given these considerations, the Applicant has satisfied me that an order giving her exclusive possession of the matrimonial home is appropriate.
Mabed v Alshawaf, 2020 ONSC 8071, is another case where the mother was granted exclusive possession of the matrimonial home. It appears that where the stressful environment created by the parents’ conflict becomes too great for the children, one of the parents must typically leave the home. This will likely be the non-primary care parent:
In this case, I am able to find as a fact that there is conflict in the matrimonial home to such an extent that the well-being of the children is at risk. The evidence is uncontroverted that the children are adversely affected by the parents' domestic conflict. The police were called to their home on more than one occasion. The mother left the home on more than one occasion with the children to separate the parents and remove the children from further exposure to conflict. The situation in this home goes beyond unpleasantness, inconvenience, and some tension: Hollinger v. Wang, 2019 ONSC 4807 (Ont. S.C.J.), at para. 29.
I find that it is in the best interests of the children to remain in the matrimonial home with the mother.
Parties should note that it is a very serious offence to contravene an exclusive possession order, pursuant to section 24(5) & (6) of the Family Law Act:
Offence
(5) A person who contravenes an order for exclusive possession is guilty of an offence and upon conviction is liable,
(a) in the case of a first offence, to a fine of not more than $5,000 or to imprisonment for a term of not more than three months, or to both; and
(b) in the case of a second or subsequent offence, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both. R.S.O. 1990, c. F.3, s. 24 (5).
Arrest without warrant
(6) A police officer may arrest without warrant a person the police officer believes on reasonable and probable grounds to have contravened an order for exclusive possession. R.S.O. 1990, c. F.3, s. 24 (6).
Obvious takeaways? It is a high threshold to receive exclusive possession of the matrimonial home. Sometimes an order is done for the sake of the children rather than the parents. In some cases, family violence may make it necessary for one party to be removed from the home. This violence does not have to be physical in nature. A large part of the analysis not covered is the existence of suitable living accommodations. Obviously, the parent getting removed from the home must be able to find alternative accommodations, which will make a financial analysis necessary. Finally, contravening an exclusive possession order may lead to serious consequences, such as imprisonment.
