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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 12-05-2005, 01:55 PM
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Default Can spouse 'force' another out of Maternal home?

I'm wondering, when one spouse finds it difficult to move out for up and coming financial reasons ... can the other spouse 'force' via a seperation agreement or other court document to have other spouse move out?

Are there any time limits or can I as a spouse say ... you'll just have to live with me or you can get out? Why should one spouse not wanting to move out have to inconveinence themselves and their childrens welfare for the happiness of the other spouse?

Assuming no vilence or abuse is present?

Hubby
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Old 12-05-2005, 05:15 PM
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You can't force a person out of their home (domestic violence aside).

Read this:

http://www.ottawadivorce.com/exclusive-possession.htm

However, the sale of the home can be forced to settle an equalization payment.
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Old 12-05-2005, 10:25 PM
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Hubby,

As Grace mentioned you do not have to leave the matrimonial home. You can also go to court and ask for exclusive possession of the matrimonial home.
The courts may grant this if the courts feel it is in the children's best interest to do so to maintain stability.

Generally, the matrimonial home is a family assist and is usually sold as not too many families can afford to keep it after matrimonial breakdown or afford to but the other party out. If the house is sold, the equity is divided equally between the parties less liabilities.

You may be entitled to spousal support and most definite child support if you have custody of the children.
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Old 12-06-2005, 08:10 AM
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Default Its a matter of time ...

So logically speaking, I can stay in the home even if the spouse is 'annoyed' to see or talk to me and co exist as civil roomates?

I realize the econonic hardship it can cause and could use the time to build my reserves for the day when I am ready to move out.

So as I understand it, only when one party demands their equity of the house must it be sold if the other cannot come up with the money? As well, what defines when that demand can be made? Seperation agreement?

Hubby
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Old 12-06-2005, 09:37 AM
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Yes, you can stay in the home and co exist, and it also counts towards the 1 year separation period.

You can have it written in the Separation Agreement, when and how the home will be divided, either selling it and split the money or one buys the other out.
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Old 12-06-2005, 10:09 PM
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Hubby,

What I referring about in my earlier reply is that you could go to court and ask for exclusive possession of the matrimonial home and could receive same if criteria is met.

Please read the applicable staute that deals with this

Family Law Act R.S.O. 1990, Chapter F.3

Section 24
Order for possession of matrimonial home

24. (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,

(a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents;

(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;

(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;

(d) direct that the contents of the matrimonial home, or any part of them;
(i) remain in the home for the use of the spouse given possession, or
(ii) be removed from the home for the use of a spouse or child;

(e) order a spouse to pay for all or part of the repair and maintenance of the matrimonial home and of other liabilities arising in respect of it, or to make periodic payments to the other spouse for those purposes;

(f) authorize the disposition or encumbrance of a spouse’s interest in the matrimonial home, subject to the other spouse’s right of exclusive possession as ordered; and

(g) where a false statement is made under subsection 21 (3), direct,

(i) the person who made the false statement, or

(ii) a person who knew at the time he or she acquired an interest in the property that the statement was false and afterwards conveyed the interest, to substitute other real property for the matrimonial home, or direct the person to set aside money or security to stand in place of it, subject to any conditions that the court considers appropriate. R.S.O. 1990, c. F.3, s. 24 (1).

Temporary or interim order

(2) The court may, on motion, make a temporary or interim order under clause (1) (a), (b), (c), (d) or (e). R.S.O. 1990, c. F.3, s. 24 (2).

Order for exclusive possession: criteria

(3) In determining whether to make an order for exclusive possession, the court shall consider,

(a) the best interests of the children affected;

(b) any existing orders under Part I (Family Property) and any existing support orders;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children. R.S.O. 1990, c. F.3, s. 24 (3).

Best interests of child

(4) In determining the best interests of a child, the court shall consider,

(a) the possible disruptive effects on the child of a move to other accommodation; and

(b) the child’s views and preferences, if they can reasonably be ascertained. R.S.O. 1990, c. F.3, s. 24 (4).

Offence

(5) A person who contravenes an order for exclusive possession is guilty of an offence and upon conviction is liable,

(a) in the case of a first offence, to a fine of not more than $5,000 or to imprisonment for a term of not more than three months, or to both; and

(b) in the case of a second or subsequent offence, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both. R.S.O. 1990, c. F.3, s. 24 (5).

Arrest without warrant

(6) A police officer may arrest without warrant a person the police officer believes on reasonable and probable grounds to have contravened an order for exclusive possession. R.S.O. 1990, c. F.3, s. 24 (6).

Existing orders

(7) Subsections (5) and (6) also apply in respect of contraventions, committed on or after the 1st day of March, 1986, of orders for exclusive possession made under Part III of the Family Law Reform Act, being chapter 152 of the Revised Statutes of Ontario, 1980. R.S.O. 1990, c. F.3, s. 24 (7).



Please see the whole applicable statute that can be found here at ontario elaws. It is worthwhile to read.

http://www.e-laws.gov.on.ca/DBLaws/S...f03_e.htm#BK26
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Old 12-07-2005, 08:43 AM
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Default Me only speaking english!

I need clarification, this could be used as a 'dirty tactic' by the other spouses lawyer if one spouse asks the other spouse to either buy their equity out or sell the house?

If no violence and drugs involved of course or the childrens safety is in question.

My preference if for the spouse and children to live in the home provided spouse can pay out the equity owing to me and after child/spousal support is added to her income she can 'afford' to run the house.

Hubby
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Old 12-07-2005, 09:15 AM
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Hubby,
Just to let you know, not everything goes the way a person wants it to go. I had asked for exclusive possession of our home, the kids were attending school, I could afford all the payments, I had all the utilities in my name, the children had roots there etc. But because my ex's sister lived so close to our home and kept us under surveillance at all times, and his parents did so also, the courts found that it was in the best interest to have us move and reorganize our lives! The move has ended up being the most stressful and unwelcoming to the kids and I it is unbelievable. The Judge ordered that we move within a time that was against even what the landlord tennant act would have allowed. Our move had Police involvement even, and yes there was abuse factors in this, but, at the same time, what the judge felt was in our best interests was outright wrong! He felt that if we moved then the surveillance aspect would be removed, it wasn't, a member of his family kept a friend of mine under surveillance and found us and it is still happening now!
Find a way to co-exist if you can, sell the house and go in your separate ways. Staying in the same house with someone that either you do not want to be with or that does not want to be with you, leaves impressions on your kids, yourself, and spouse that are very hard to get over when the time comes.
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Old 12-07-2005, 04:36 PM
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Hubby,

I can't see why one spouse buying out the other would be seen as a "dirty tactic".

Lisa,

What a nightmare for you and your kids!!! It's like rolling the dice sometimes in court. You never know what a Judge might rule. They don't know you or your family. This is why I prefer mediation, but it is not always the best route to go in domestic violence cases. Sounds like you would have been better of staying in the home, as that is what you wanted, and getting a restraining against his sister.

I hope you and your children can move on from this.

All the best,
Grace
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Old 12-08-2005, 08:34 AM
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Thanks Grace,

It was a nightmare to say the least. I am still in the process of getting a restraining order from my ex's family members. The Judge ordered a mutual restraining order against my ex and I when we were in the home together, but it has now been two months later and I am still obviously waiting to get back in front of a judge to make it right.
My ex has exercised every delay tactic that is imaginable. He is self represented and never responds to anything and then makes it a nightmare with family when we are at the court house. Never a dull moment, I can't wait to move on from this....... that is if he ever let's us.
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