Exclusive Possession of the Matrimonial Home

After spouses separate, disagreements about how to disentangle a family’s financial affairs often arise.  One area of dispute relates to the matrimonial home. In Ontario, the Family Law Actgives both spouses an equal right to possession of a matrimonial home, regardless of ownership.  One party may attempt to seek an order for exclusive possession of the matrimonial home.

It is a discretionary decision whether to grant a person exclusive possession of a matrimonial home. It involves a balancing of a number of factors.

Section 24 of the Family Law Act (“FLA”)provides a court with the jurisdiction to order exclusive possession of a matrimonial home to a party for the period that the court directs. This is on a temporary basis, can be only part of the home, and is regardless of ownership. Moreover, a court has the power to order exclusive possession of the contents of the matrimonial home, or any part thereof, to a party on a motion.

In determining whether to make an order for exclusive possession, a court must consider:

• the best interest of the children affected; 
• any existing orders under Part 1 (Family Property) and any existing support orders or other enforceable support obligations;
• the financial position of both parties;
• 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.

Best Interests of the Child

Under subsection 24(4) of the FLA, in determining the best interest of a child, a court must consider,

• the possible disruptive effects on the child of a move to other accommodations; and 
• the child’s views and preferences, if they can reasonably be ascertained.

Exclusive possession has been granted in cases in which the following common findings were made:

• There is conflict in the home that is adversely affecting the child;

• The stress in the home has become unbearable and leaving the home would be disruptive to the children; and

• It is not in the children’s best interests for the parents to continue living under the same roof.

Courts have been clear that children should not be exposed to adult conflict, unpleasantness, and negativity that occurs while the parties live separate and apart in the home.  A child’s well-being is too important to be prejudices by whatever personal animosity may continue to impact his or her parents’ relationship.

In Naccarato,the Honourable Justice Jarvis explains that it is unquestionable that any order for possession of the matrimonial home should focus on the children’s well-being and stability. It shoul remove them as much as possible from their parents’ conflicts.  Perpetuating a conflict-filled environment cannot be best for children. However, a court must be cautious that allegations of conflict are not made on specious grounds. Nor should it be purposed to misrepresent the facts so as to enable a party to “win”.

An alternative and creative solution to a claim for exclusive possession of the matrimonial home is a “nesting” or “bird’s nest” order.   A “nesting” or “bird’s nest” order provides that the matrimonial home will be shared by the parents after separation. This is usually on a week on/week off basis, with the children remaining in the home.  It also involves much less disruption for the children because they remain in the matrimonial home.  Such orders are not appropriate if both parties disparage each other’s parenting skills or where there is no clear evidence that they can live or work together.

During the Pandemic

Throughout the COVID-19 pandemic, individuals have continued to request exclusive possession of the matrimonial home.  As spouses have been forced to live together under the same roof for an extended length of time, tensions have also risen an as spouses are craving their own space.

In Williams v Williams, both parties were seeking exclusive possession of the matrimonial home and continued residing together.  In this case, the circumstances revolved around the best interests of the child and the importance of the child living in a home that is familiar. 

Other cases demonstrate another side of how the pandemic can effect exclusive possession. In Alsawwah v Afifi,the Mother had been residing in the matrimonial home since approximately February 2020.  The parties’ three children were living exclusively with the father in his one-bedroom basement apartment.  The Honourable Justice Kurz granted the father exclusive possession of the home because the paramount concern was the children’s best interests.  It is clearly in their best interests to trade their cramped quarters for their former spacious home.  The Honourable Justice Kurz also explained that the “best interests factor” carries far greater weight during the pandemic. “Social distancing” rules and safety guidelines are heavily considered.