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When a married couple separates, either spouse may seek the exclusive right to live in the home regardless of ownership and who is on the title. The living arrangements for any dependent children will be a crucial consideration in determining exclusive possession, as it may be essential to minimize disruption and maintain stability. However, the claimant must bring evidence that clearly establishes there is a need for the order. Significantly, an order for exclusive possession does not change the ownership of the home, and it will still need to be addressed in the equalization of net family property.
Claimant Seeks Exclusive Possession and Transfer of Matrimonial Home
In Etches v. Mitchell, the court was faced with competing motions. The respondent sought an order for exclusive possession of the jointly owned matrimonial home. In addition, he also sought an order for the house to be transferred to him in exchange for a payment of $40,000 in trust to cover any equalization payment he might owe, as well as his assumption of liability for the parties’ joint debts. On the other hand, the applicant sought an order for the partition and sale of the matrimonial home. The parties had an eleven-year-old child who had been diagnosed with attention-deficit/hyperactivity disorder, and both parties had parenting time with the child. The respondent claimed that the child required stability and that since he was in a position to buy out the applicant’s interest in the home, an order for exclusive possession of the house would be in the child’s best interests.
Section 24(1)(b) of the Family Law Act (FLA) provides courts with the power to give one spouse exclusive possession of the matrimonial home regardless of the ownership of the home. And, section 24(3) sets out the criteria for judges to consider when determining whether to make an order for exclusive possession. These include:
- 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.
- any violence committed by a spouse against the other spouse or the children.
Statute Sets Out Considerations When Ordering Exclusive Possession of Matrimonial Home
Justice Ellie’s first dealt with the allegation of family violence. The applicant claimed that the respondent was abusive towards her and the child, and that because of his abusive nature, he effectively forced her to leave the matrimonial home. However, that was the full extent of the allegation, and the applicant did not provide any other details to support her allegation. The respondent denied the allegation and pointed out that he had not been charged with any criminal offence. Without anything more, the judge was not prepared to give the allegation much weight as a factor in determining the exclusive possession of the home. Instead, the judge turned to considering the availability of alternate accommodation. The applicant argued that she would not be able to purchase another home until she received the equalization payment that she believed she was entitled to. However, the judge was not persuaded. She had already explained that she had hoped to buy out the respondent’s interest in the matrimonial home after separation. She further explained that an appraisal set the value of the house at $625,000, and that she had the financing that would have permitted her to undertake the purchase. But if that was true, then given her ability to borrow money, the judge was not persuaded that she was unable to afford other accommodation.
Turning to the parties’ finances, the applicant estimated the value of the home to be in the range of $625,000, whereas the respondent valued the house at only $600,000. Yet, the respondent had not permitted anyone to conduct a full appraisal of the interior and exterior. He explained that he had not allowed an appraiser inside the home as he was worried that the applicant would not disclose all the shortcomings, and that the house would therefore be appraised at a higher value than it was worth. This would impact the equalization payment by increasing the value of the applicant’s equity in the home, which could either reduce the amount of the equalization payment the applicant might have to make or increase the amount of any equalization payment the respondent may have to make.
The respondent proposed that, if the court made an order transferring the matrimonial home into his name, he would pay $40,000 into court pending a resolution of the equalization issue. The respondent suggested that this would ensure the applicant’s equalization claim would not be prejudiced if they obtained the home. However, Justice Ellies found there were problems with this proposal. One was that it was based on a value of $600,000 for the matrimonial home. Yet, there was some evidence that the house could be worth more than that. Therefore, a $40,000 trust payment would be insufficient. The judge was not convinced that the respondent would qualify for financing if the house value significantly exceeded $600,000.
Court Requires Evidence Exclusive Possession Is Required For a Child’s Best Interests
But the most important factor in deciding the respondent’s request for exclusive possession came down to the best interest of the child. The judge first explained that this is only one factor to be considered in each case, though it is an important one. In Kirby v. Woods, the Ontario Court of Appeal cited previous jurisprudence that emphasized that “[w]henever a child is affected by a court or government process, the primary consideration must be the child’s best interests”. Moreover, section 24(4) of the FLA states that when 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.
Here, only the first factor was raised, and the respondent submitted that the child’s ADHD and attachment disorders could be best managed by awarding him exclusive possession of the home. There were also problems with the evidence that the respondent relied on, which did not establish that the child could not be subjected to change. In particular, the respondent requested that the judge rely on internet sources that evidence features of the child’s diagnosis. However, the judge was reluctant to do so, noting that it would be expert hearsay evidence used to decide an important issue and was not prepared to consider those sources.
Instead, the judge found that the respondent’s own actions undermined his argument that the child’s best interests would be best met by his obtaining exclusive possession of the home. Notably, the respondent refused to agree to a nesting arrangement where each party would be able to exercise their parenting time in the matrimonial home while the other parent resided elsewhere. Justice Ellies suggested that if the respondent truly believed that it was essential to minimize changes for their child, then it would have been expected that he would consent to the nesting arrangement. The result was that when the applicant exercised her parenting time, the child spent that time at her residence. And the respondent agreed that this change had not affected the child at all. Consequently, the child’s best interests did not weigh in favour of the respondent having exclusive possession of the home. And overall, there was no basis to grant the respondent exclusive possession.
Court Could Not Transfer House Before Determining the Equalization Payment
Looking back to the respondent’s proposal that he obtain the matrimonial home in exchange for assuming the joint debts and depositing funds into a trust, a further obstacle was that the court did not have the power to make the requested order. The respondent confirmed that he would only be able to secure the financing once he had an order transferring the home into his name only. He pointed to section 9(1)(d)(i) of the FLA, which enables courts to order that property be transferred to a spouse to satisfy an equalization obligation. However, in Chaudry v. Chaudry, the court interpreted that provision and concluded that an order could only be made after the amount of the equalization payment had been determined. Similarly, in Shouldice v. Shouldice, the court explained the FLA is intended to “equalize the value of family property, not to change the ownership of assets”. In Etches, the amount of the equalization payment had not been determined, and it was also not clear which party would be making the payment. Ultimately, the court did not have the power to make an order transferring the applicant’s interest in the matrimonial home.
Family Law Act Equalizes the Value of Family Property
The matrimonial home must be considered during the equalization of family property. While courts can sometimes order that property be transferred to a spouse, the purpose of the Family Law Act is to equalize the value of family property, not to rearrange the spouses’ assets.
Windsor Matrimonial Home Divorce Lawyers
Determining the future of your matrimonial home is often the most emotionally and financially complex aspect of a separation. As recent case law, such as Etches v. Mitchell, demonstrates, the court’s priority is equalizing the value of family property rather than simply rearranging assets. Securing “exclusive possession” requires clear, compelling evidence regarding the best interests of your children and your financial standing.
Don’t navigate these statutory requirements alone. The team at Johnson Miller Family Lawyers can help you understand your rights under the Family Law Act, evaluate the strength of a claim for exclusive possession, and ensure your interests are protected during the equalization process. To explore how these laws apply to your specific situation or to arrange a formal consultation, please contact us at 519.973.1500 or visit us online.
