In a recent Ontario decision, the court ordered separated parents to switch residences during the COVID-19 pandemic; the mother had been living alone in a four-bedroom home, while the father lived in a one-bedroom basement apartment with their three children.

What Happened?

The parents married on September 14, 2004 and separated on October 15, 2018. They have three children, aged 14, 13, and 8.

The separation occurred when the police arrested the father, charging him with assault against the mother and mischief to property. His bail terms prohibited him from residing in the matrimonial home or coming within 500 meters of that home. Those terms had recently been amended to allow the father to move back into the home if he was granted exclusive possession of the home. 

Immediately following the parties’ separation, the children continued living with the mother in the four-bedroom matrimonial home, while the father moved into a one-bedroom basement apartment. 

Over time, all three children moved in with the father, although not all at the same time. The three children began living exclusively with the father starting February 25, 2020 following a physical fight between the mother and the eldest child. The mother and father offered different accounts of what occurred during the incident.

The father brought a motion for exclusive possession of the matrimonial home. The father proposed switching residences with the mother or at least moving with the children back into the home. 

The mother wanted to remain in the matrimonial home. 

COVID-19 Context

When the father brought the motion, courts were closed due to the COVID-19 pandemic. However, the matter was deemed to be urgent and was heard by the court in May 2020. 

Parties’ Positions

The father argued for exclusive possession of the matrimonial home based on the children’s best interests in returning to live in their larger former home during the COVID-19 pandemic and his financial inability to maintain two homes. 

The mother argued that the father failed to meet the legislativetest for exclusive possession. Additionally, she alleged that the father was abusive, both physically and economically, a liar, a cheater and a malicious man. 

Decision

The court began by explaining that whiles. 19 of the Family Law Act grants both spouses equal right to possession of the matrimonial home, s. 24 allows the court to grant one of the spouses exclusive possession of that home. 

In making the order, the court must consider the best interests of the children, including the possible disruptive effects on the children of a move to other accommodation and the children’s views and preferences, if they can reasonably be ascertained.  

After reviewing the evidence, the court stated:

“It is clearly in [the children’s] best interests to trade their cramped quarters for their former spacious home. The best interests factor acquires far greater weight when considering effects on the children of the COVID-19 pandemic “social distancing” rules[…]. A return to their home will give them added stability and security. 

In a similar vein, I cannot 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.”  

As a result, the court granted the father’s motion for exclusive possession of the matrimonial home. 

Get Advice 

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.