While some parts of the province have begun to re-open, the emergency measures put in place have been extended until at least May 29, and as a result, Ontario courts are still only hearing urgent matters on a reduced schedule. In family law, some situations are serious enough to warrant a trial during this time. One such example was a case where the courts had to determine if a father and three children should be able to have exclusive possession of the matrimonial home at the expense of the mother’s ability to continue living there.

The family background

The parties were married in 2004 and separated in 2018 after having three children. The separation occurred after the father was charged for assaulting the mother. The bail terms stemming from his arrest prevented him from residing in the matrimonial home or coming within 500 meters of it. The father’s trial was put on hold when the COVID-19 pandemic struck.

Since their separation, the children have come to live with the father in a one-bedroom apartment he rents. They moved in with the father at different times, though there was evidence provided that the mother physically assaulted one of the children.

The motion

The motion brought by father had him seeking exclusive possession of the matrimonial home where he planned to live with the three children. The father claimed his one-bedroom apartment is too small to accommodate four people, especially while he has been left working at home during COVID-19. He also claimed he was financially unable to maintain two homes. The father suggested switching homes with the mother, who wanted to stay in the home instead.

Reversing possession of the home

The father explained that the three males, including himself, have been sleeping on the floor of the living room of the apartment while the daughter has had occupancy of the bedroom. The father said he is unable to work at home with everyone there, and that the daughter, who was in counseling following a suicide attempt, is unable to meet with her counselors.

The father had been paying for the home as well as his apartment and claimed that his housing costs amounted to over $6,000 per month, which was significant even with his income of about $180,000 per year.

The mother argued that the father has failed to prove that moving into the home would be in the best interest of the children. She also pointed to her income as an Uber driver, which was only about $1,000 per month prior to COVID-19, arguing the financial disparity between the parties prevents her from affording an apartment.

The court ultimately found that it was in the best interests of the children to return to their home with the father. There were credibility issues with each parent, but ultimately the court found it could not  “ignore the fact that four people are living in a basement apartment while only the mother lives in the home. If most of the father’s housing expenses are going to that home, shouldn’t the greatest number of family members, and particularly the children, utilize it? Further, the father’s basement apartment is available for the mother to use, at least in the short term, if she wishes.”

In addition to being given possession of the home, the father was also ordered to pay the mother $2,500 per month in spousal support for May and June of this year, with payments of $1,250 thereafter.