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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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  #1 (permalink)  
Old 11-28-2008, 11:51 AM
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Default H won't let her leave

I'm trying to help out a friend here - she is really struggling.
Her and her H are separating - her h won't let her leave the house. He has taken away phones, car keys and refuses to let her leave (with their children).
She can't possibly afford a residence w/o child support which he refuses to pay until they have an agreement in writing - he refuses to let her leave until there is an agreement in writing. He is pursuing shared custody so that he won't have to pay her child support - he is trying to have her viewed as unstable - although she is the one that takes care of the children - takes them to appts, daycare, school etc.
Please - can someone tell me what a judge looks at in these situations? I know that shared custody is a strange thing - and the H refuses to do mediation/collaboration - he has retained a VERY EXPENSIVE lawyer that honestly - no other lawyer in this town will go up against - how awful is that? She can't even get representation b/c of his lawyer's reputation.
She is so scared of losing her children (although he is an alcoholic and has to be begged to take time off work to care for sick children when she isn't able). He is threatening her with so many things and w/o a lawyer yet, she is freaking out.
I've told her to get out and go to a shelter but she can't do it (pride?).

Any info would be helpful - I've been through separation and divorce, but mine was relatively amicable and my ex took responsibility for his actions. This man just seems hellbent on making this as difficult and painful as possible.

If there are links to this sort of info on this board, I'd appreciate the help.

Thank you in advance. I'm very scared for her.
  #2 (permalink)  
Old 11-28-2008, 03:44 PM
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Cool mochamichelle

Can she not seek a paralegal to help her with these issues and
get a motion in place from the court for "exclusive possession" of the
matramonial home based on the grounds of "mental abuse". Undue stress and
pressure. i.e. "best interest" of the chidren. If this motion is passed he would
have, by law, approx. 28+ days to seek a alternate residence.

Please keep in tune with this site.. as there are some excellent people
associated with this site with very good advise and mor experience then me.

Plse. note: In some cases a paralegal can be used instead of a lawyer.

Also: Google "exclusive possession" to get more detailed info.
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Old 11-28-2008, 03:54 PM
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Thumbs up mochmichelle, some info.

This is taken directly from the "Canadian Family Law" Act:
==========================================
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).



==================================================

Exclusive Possession Of The Matrimonial Home:


You and your spouse both have equal rights to come into and out of the house as you please, regardless of who owns the house. In exceptional circumstances, a judge will take this right away from one of the parties involved. But don’t think you can get a court to give you exclusive possession of the home just because you want your soon to be former spouse out. Courts are very hesitant to kick a person out of their own home. To do so, there must be something serious like domestic violence. Simply not liking one another, or even a stressful situation (what divorce isn’t stressful?) is not enough to warrant granting exclusive possession of the matrimonial home.



A court order for exclusive possession of a matrimonial home will be granted in only limited circumstances. Typically, some evidence will be required of physical abuse or violence, or behaviour on the part of one of the spouses clearly adverse to the best interests of the children living in the matrimonial home. Significantly, emotional abuse on the part of one of the spouses against the other spouse is usually not sufficient on its own to warrant an order of exclusive possession.


If the spouses separate and can no longer live together, either may apply to the court for an order for exclusive possession of the matrimonial home. In order to be given exclusive possession, the spouse seeking the order will have to satisfy the court that continued cohabitation is practically impossible because of violence, tension or arguments. The spouse will also have to provide the court with evidence as to what accommodation is available to the other spouse. If there are children, their best interests will also be considered by the court. It is quite difficult to get an exclusive possession order in a Toronto court.


If the matrimonial home is in the names of both parties then either party may seek an order from the court to have the home sold and the proceeds divided equally.

================================================== =


Some frequent arrangements of custody between separated spouses are:

Sole Custody:

The parent having custody of the children is solely entitled to make decisions related to them. The parent not having custody is entitled to have input into decisions and to be provided with information related to the children. There is no assurance, however, that input will be reflected in any decisions ultimately made. The children will live with the parent who has custody. Usually, the parent not having custody, the “access” parent, will have defined rights of access to the children, with varying degrees of detail as to timing, depending upon the family;


Joint Custody:

Each of the parents is equally entitled to make decisions related to the children. Usually, the children will have a primary residence with one of the parents, and a secondary residence with the other parent. The terms of “access” or visitation are likely to be specifically defined;


Shared Custody:

Increasingly, parents are attempting to work out shared parenting plans. Often, these arrangements will confirm that the children will divide relatively equal time between the homes of the separated parents. Usually, both parents will make decisions related to the children. Access may continue to be relevant. For example, a parent may wish to have mid-week access during the week in which the children are residing with the other parent. To be successful, this arrangement may require more flexibility on the part of the parents than other arrangements of custody. In addition, ideally, the separated parents would continue to reside geographically close to each other, in order that the children can easily maintain their school, social and neighbourhood connections; and
  #4 (permalink)  
Old 11-28-2008, 04:03 PM
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Exclamation mochamichelle..a little more info which I dug up during my ordeal.

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).

================================================== ===

Definition of: Matrimonial Home

A matrimonial home is defined by the Family Law Act to be “every property in which a person has an interest and that is or, if the spouses have separated, was at the time of the separation ordinarily occupied by the person and his or her spouse as their family residence”. Only married spouses may have a matrimonial home. The significance of having a matrimonial home is that both spouses have an equal right to possession, regardless of ownership. That is, one spouse may legally own the home, but, nevertheless, both spouses will be equally entitled to live in it. If a relationship breaks down, the spouse owning the matrimonial home is not entitled to require the other spouse to leave it. Likewise, one spouse cannot unilaterally change the locks to a matrimonial home. This entitlement to equal possession can be varied only by court order or agreement (not including a marriage contract).
  #5 (permalink)  
Old 11-28-2008, 04:11 PM
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Post mochamichelle - one more

Eventually your friend may hear about "Case Conferences"
================================================
CASE CONFERENCE:

At a case conference, a judge may do one or more of the following:


- facilitate the resolution of any issues in dispute;
- mediate any issues in dispute other than the issue of whether the child needs protection; with the consent of the parties, refer any issue, other than the issue of whether a child needs protection, to mediation under section 22 of the Act or to another dispute resolution process;
- decide any issues that do not require evidence or that can be decided on the basis of facts agreed to by the parties;
- make any order in the terms the parties agree to, subject to section 60 of the Act;
- review the adequacy of disclosure by the parties, including responses to requests for disclosure under section 64 of the Act;
- order that a party provide to another party, within a set time, a summary of the intended evidence of a potential witness;
- order a party to allow another party to inspect and copy specific documents or records to the extent permitted by the Act;
- order that those applications that cannot be made at the case conference be brought within a set time;
- order that a statement of agreed facts be filed within a set time;
- give directions about any evidence that will be required, how it will be received and the procedure that will be followed, if a hearing is necessary or a mini-hearing is directed;
- order a party to produce anything as evidence at a hearing;
- direct that any further case conference be held before the same judge;
with the consent of the parties, direct the parties to attend a mini-hearing if;
the matter can be resolved on the basis of limited evidence and submissions; and
a mini-hearing can be held earlier than the matter could be set for full hearing.
- without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing; -
- set a date for a hearing or mini-hearing;
make any other order or give any direction for the fair and efficient resolution of the issues.
  #6 (permalink)  
Old 11-28-2008, 06:29 PM
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Default

For exclusive possession of the home to be awarded, the circumstances have to be pretty extreme. A history of violence and the threat thereof would qualify, but if there hasn't been a history of police involvement that will be difficult to establish.

If the husband earns more than the wife, then CS will be applicable even in a shared custody arrangement.

You probably know that if either spouse leaves the home without the kids, then sole custody for the leaving party would be pretty much out of the question, and joint custody might be prejudiced as well.

Hopefully they can come to an agreement that will serve eveyone's interests, especially those kids. It doesn't sound unreasonable for him to be want an agreement in place before they separate.

The idea that he "won't let her leave" is disturbing, but there a few ways to read into that. I hope and expect that she has some options/choice in the matter, otherwise there's a real problem there.
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Old 11-29-2008, 08:21 PM
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Default Thanking you for your posts

Thank you very much for the information. I will hopefully pass it on to her.
It would appear that he is serving her with some sort of papers on Monday and he doesn't want to be there when she does b/c she is going to be very upset. I can't for the life of me think of what he might be serving her with but she's a basket case at the moment. He left for the weekend, taking some photo albums and "personal property".

Thank you again.
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