Recent decisions respecting exclusive possession of the matrimonial home have considered the factors present during a public health risk. An essential aspect that the courts consider is the well-being of the inhabitants of the matrimonial home in the midst of a public health crisis.
Regardless of the ownership of a matrimonial home, a court may direct that one spouse be given exclusive possession of the matrimonial home. In determining whether to make an order for exclusive possession, the Court will consider the six criteria set out in s. 24(3) of the Family Law Act. They are:
The best interests of the children affected;
Any existing orders under Part I (Family Property) and any existing support orders;
The financial position of both spouses;
Any written agreement between the parties;
The availability of other suitable and affordable accommodations; and,
Any violence committed by a spouse against the other spouse or the children. [1]
Among the six factors, the best interests of a child are paramount in determining an order for exclusive possession. In determining the best interests of a child, the Court must consider:
the possible disruptive effects of the child of a move to other accommodation; and
the child’s views and preferences, if they can be reasonably ascertained. [2]
In Alsawwah v. Afifi, three children and their father were living in a one-bedroom basement apartment, while the mother lived alone in the matrimonial home. The father brought a motion seeking exclusive possession of the matrimonial home so that he and the children could reside there. The court held that the best interests of the child supported the father's request for exclusive possession. In its decision, the Court noted that:
The children remain in very cramped quarters, offering little privacy and exclusive living space. Only H has her own bedroom. Two of the children sleep on the floor. All of their circumstances are exacerbated by the COVID-19 distancing rules as well as the cancellation of their school and extracurricular activities. Add to that the fact that the father has to work at home, meaning that four people are crowded together, almost 24/7, in cramped quarters. [3]
In Guerin v. Guerin,[4] the parents were in a “nesting arrangement” whereby one parent remained in the matrimonial home with the three children on an alternate week basis. Since early March 2020, due to the COVID-19 pandemic, the parties had stayed together in the matrimonial home. The mother and two of the children suffered from health conditions that may leave them susceptible to the effects of COVID-19. The mother's doctor provided a letter confirming that the mother's serious health issues could be compromised if she was exposed to the COVID-19 virus.
The mother sought an order for exclusive possession of the matrimonial home and to limit contact between the father and the children to video chat and phone access. The mother argued that the father was engaging in behavious inconsistent with COVID-19 protocols. The court accepted the mother's evidence that the father was leaving the matrimonial home on numerous occasions without explanation, had not been forthright about his excursions outside the home, and refused to respond to questions as to whether he had washed his hands. The court also accepted the mother's evidence that she was particularly vulnerable to the COVID-19 virus.
The court granted the mother temporary exclusive possession of the matrimonial home and limited contact by the father to the children to electronic means. In its decision, the Court noted that this is a temporary solution in these exceptional times. The court also permitted the father to return to the court after three weeks to provide the court with details and measures he had taken to minimize the risk to the family.
The Takeaway
Both cases described above illustrate that the court’s paramount consideration in motions for exclusive possession is the best interest of the children. Such a consideration becomes all the more important during a public health crisis and the measures associated with mitigating the risk of harm.
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Suliman Law Firm has prepared this document for information only; it is not intended to be legal advice. You should consult us about your unique circumstances before acting on this information. Suliman Law Firm excludes all liability for anything contained in this document and any use you make of it.
Citations
[1] Family Law Act, ss. 24(3)
[2] Menchella v. Menchella, 2012 ONSC 6304, at para. 9
[3] Alsawwah v. Afifi, 2020 ONSC 2883, at para. 53
[4] Guerin v. Guerin, 2020 ONSC 2016, at para. 7-8
[5] Guerin at para 21