Exclusive Possession of Matrimonial House
Do both spouses have a right to stay in the house?
Sections 19 and 24 of the Family Law Act state that both married spouses have an equal right to possess their matrimonial home regardless of ownership. In other words, it does not matter who is on title for the house. A non-occupying spouse can still pursue balancing the financial inequality through a claim for occupation rent.
How can a married spouse obtain exclusive possession of the matrimonial home when domestic violence is involved?
Married spouses can apply to the court, under Section 24(1) of Ontario’s Family Law Act, for temporary exclusive possession of the matrimonial home. If you would like permanent exclusive possession of the matrimonial home, you may also apply for it, but it is extremely difficult to obtain.Â
What are the factors that a judge considers when considering exclusive possession?
A judge would look at the following factors when considering exclusive possession:
- The best interests of the kid(s)
- Existing orders under Family Property or existing support ordersÂ
- Financial stability of both individualsÂ
- Any written agreements made by the individualsÂ
- The option of finding other suitable housingÂ
- Any history of violence against the other spouse or the children
- Any psychological distress caused to other spouse or the children
Past acts of physical violence will make it more likely that possession will be given.
Can the spouse be arrested if they enter the home?
A court order of exclusive possession can be seen as equal to a restraining order in terms of enforcement. Therefore, if your spouse enters the home, they can be fined and/or imprisoned. In fact, the police have the authority to make an unwarranted arrest under Section 24(6) of the Family Law Act.
Can you apply for exclusive possession if you are common-law?
For unmarried partners, you cannot ask for exclusive possession of the matrimonial home as that right is only given to married partners.
What options do you have instead?
However, under Section 46(1) of FLA, you may ask for protection, including a permanent or temporary restraining order against your common-law partner. If you receive a restraining order, they will be automatically excluded from the matrimonial house if you are staying there.
How does DV affect parenting time and decision-making responsibility of the children?
When concerns about domestic violence have been raised, the court investigates the accusations, prioritizing the safety and well-being of the kid(s). Therefore, if the court has determined the claim of abuse has occurred and the parents cannot cooperate, sole custody of the kid(s) will be given to the partner considered the victim. It is important to note that the court does not solely take into account statements from parents or relatives. Instead, they examine violence within family history, severity and frequency, any form of evidence presented, and past police reports documenting abuse.
Does it matter if I did not go to the police?
It is encouraged to always report to the police of any matter related to DV. In fact, a police report can provide physical safety for your family, kid(s), and yourself, alongside further support for your case, especially in child custody or access cases. However, if you do not make a police report, it will not be considered an issue in the court as they will consider the facts and evidence presented to them.
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