What options does a parent who lives in a small space with their children during the COVID-19 pandemic have when their spouse continues to live in the larger matrimonial home? In a recent case, an Ontario court considered the question of whether it would be appropriate to reverse possession of the home so that the father, who had care of the children, could have more space.
The parties married in September 2004 and separated in October 2018. They have three children together. The children have been in the father’s de facto care since February 25, 2020.
Since that time, the mother continued to live in the four-bedroom matrimonial home on her own while the father lived in a one-bedroom apartment with the three children.
Given that the challenges of living in a cramped space were exacerbated by the COVID-19 pandemic, the father brought a motion for exclusive possession of the matrimonial home.
The Relevant Legal Principles
Under s. 24(1) of the Family Law Act, the court can grant one spouse exclusive possession of the matrimonial home. In determining whether to make an order for exclusive possession, the court must consider:
- the best interests of the children affected;
- any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;
- the financial position of both spouses;
- any written agreement between the parties;
- the availability of other suitable and affordable accommodation; and
- any violence committed by a spouse against the other spouse or the children.
The primary consideration when deciding whether to make an order for exclusive possession is the children’s best interests. In determining the best interests of a child, the court must consider:
- the possible disruptive effects on the child of a move to other accommodation; and
- the child’s views and preferences, if they can reasonably be ascertained.
The Court’s Decision
In granting the father’s motion, the court found that the children’s best interests tipped the balance of factors in the test for exclusive possession in the father’s favour. The children lived in very cramped quarters with the father. The situation was exacerbated by the COVID-19 pandemic, which meant that four people were crowded together, almost 24/7, with little privacy.
If the father was granted possession of the home, no one would have to sleep on the floor. Each child would have his or her own bedroom, privacy and personal possessions around them. They would also have a yard and the father’s working at home would not get in the way.
The court also noted that the mother had a potential affordable accommodation, as she could take over the father’s basement apartment.
While the court was faced with two allegations of spousal violence, each allegation was as credible as the other.
The court concluded that the second and fourth factors in the test outlined in the Family Law Act were irrelevant to the determination of this motion as there were no existing orders or written agreements between the parties.
For the reasons outlined above, the court granted the father exclusive possession of the matrimonial home. However, because the father had a higher income than the mother and the mother was being ousted from the home, the court ordered the father to make two periodic payments of $2,500 per month for the months of May and June 2020. The father would then pay the mother $1,250 per month going forward.
The decision to grant a party exclusive possession of the matrimonial home is a discretionary one. However, the children’s best interests will always be the court’s primary consideration.
If you have questions about your rights, it is best to speak with a lawyer. At Gelman & Associates, we understand that this is an uncertain and stressful time. We are remaining open to help our clients, but are taking precautions to keep safety paramount. While we may not be able to meet in our office, our lawyers are fully prepared to continue to offer all of our legal services paperless and conduct important meetings using digital technology. Our goal is to always empower clients to make informed decisions about their future.
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