A recent unreported case from Owen Sound in Grey County, provides guidance on the issue of exclusive possession of family property. His Honor, Justice Sproat rendered the decision on May 15, 2020. On May 11, 2020, the applicant father, Sebok had moved the Court through an urgent motion supported by an affidavit, on the basis on which the Court granted an ex-parte order for the respondent mother to vacate the family home. This ex-parte order was granted on May 12, 2020. Neither the Court nor the father’s counsel were aware that the mother had counsel representing her. On May 12, 2020 itself, upon receiving the ex-parte order, counsel for the mother immediately approached the Court requesting for an urgent hearing and of setting aside the exparte order issued on May 12, 2020 on the basis that the mother would essentially be homeless and had nowhere else to go. The Court graciously agreed to an urgent hearing on May 13, 2020. The Law: Before we explore the case at hand, let us look at the law. S. 23 and 24 of the Family Law Act is the governing legislation for this area of the law.
Either spouse can apply under s. 24(1) for exclusive possession of the home, even if that spouse does not hold legal title to the home. Courts can grant such an order, as either a temporary or final order. However, courts will rarely make such an order, even on a temporary basis, because it is a very drastic measure, requiring a spouse to vacate his or her own home and find other accommodation. Usually only in extreme circumstances, such as violence, an intolerable living situation, and/or a spouse who cannot afford other accommodation, will the courts consider an order for exclusive possession.
Section 24(3) indicates the criteria that a court will consider in making an order for exclusive possession: · 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 accommodation; and · Any violence committed by a spouse against the other spouse or the children.
In considering the best interests of the child, courts as per s. 24(4) will consider possible disruptive effects of a move on the child, and the child’s own views and preferences, if those can be ascertained. In past cases, courts have also considered other factors, such as psychological strain resulting from living with daily friction between parents.
The case at hand: A reading of the case reveals that the Court was primarily influenced by the father’s affidavit, where the father had stated that the mother’s parents were building a home next door to the matrimonial property that the mother could easily live in. In the meantime, the father was living at his parent’s home for the past 60 days – he was not living at the matrimonial home. Only the mother was. So, who got the home and why?: The Court’s endorsement makes valuable reading. The mother was granted exclusive possession and the previous ex-parte order issued was vacated. The reasoning of the Court was that the mother did not have a suitable accommodation to live in and would essentially be dispossessed. The Court also wanted the mother to continue with her mental health counseling and did not agree with the father that the mother should relocate to her parent’s home in Mississauga. Analysis and lessons from this decision: Many times, exclusive possession is made on an ex-parte manner, only on the basis of the applicant’s affidavit. This is because the matter is considered so serious that the Court BELIEVES the contents of the applicant’s affidavit. In setting aside the ex-parte order, the Court specifically noted that while the father had initially stated that the mother’s parents had constructed a home next door, during examination in chief on May 13, 2020, the father admitted that the home was not ready and was not habitable. It is therefore important to TELL THE TRUTH AND NOTHING BUT THE TRUTH IN AN AFFIDAVIT. Equally important, you need a good lawyer who understands your case, is sympathetic to your situation and is knowledgeable in the law to translate your needs effectively to the Court. At Shankar Law, we are happy to assist and guide you through whatever challenges you have in your spousal life. We work in three counties: Huron, Bruce, and Grey and span several cities (Southampton, Kincardine, Goderich, Wiarton, Hanover, Dundalk, Walkerton, Meaford, Markdale, Chatsworth), through our two locations in Port Elgin and in Owen Sound.
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