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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 02-07-2013, 05:50 PM
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Default What are legal rules / test for temporary exclusive possession of mat home

What rules /test do judge have in place to award temporary exclusive possession of mat home?

My ex and I are working through the divorce since our nov 11 separation. We continue to live in the mat home and have 3 children. She is claiming spousal abuse (emotional not physical - no police were ever called). It's a frosty relationship but there is no yelling etc.

We had some custody etc agreements but she wouldn't move on equalization as it appears we would have to sell the house - really she wants the home.

So her lawyer (now 2nd) is claiming spousal abuse and awarding her temporary exclusive possession of the home pending a determination of issues.

I don't really want to move out without access and financial agreements in place, primarily cause i'll only see my kids on her terms.

We have a conference scheduled for later this month but I am wondering exactly what legal test judges use for awarding temporary exclusive possession. What is the litmus test.

Thanks,
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Old 02-07-2013, 06:26 PM
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Quote:
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).
Source - Family Law Act, R.S.O. 1990, c. F.3
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Old 02-07-2013, 06:54 PM
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thanks, any links on how judges would interpret/apply these criteria.
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Old 02-07-2013, 08:10 PM
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If that is the case why don't you make a case for exclusive possion and have her move out?
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Old 02-07-2013, 08:17 PM
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I would think it very questionable for either party to start alleging abuse right at the time property/equalization matters are to be addressed. Judges weren't born yesterday and see this sort of thing everyday. Onus is on your wife to prove her allegations (of abuse). I believe a judge would likely defer judgement to investigation by 3rd party before ruling on this in the absence of police reports. This, of course, is merely my opinion and I am not a lawyer nor do I have any legal training.
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Old 02-07-2013, 09:19 PM
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Quote:
Originally Posted by mf1iaat View Post
thanks, any links on how judges would interpret/apply these criteria.
CanLII

Do a search on there....happy reading!
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Old 02-07-2013, 10:49 PM
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Unfortunately for the OP, a cursory look at the case law indicates that judges often interpret "best interests of the children" to mean that conflict should be reduced (to spare the children) by granting exclusive possession to one party. Generally speaking, that party is of course the one with "temporary" custody.

In a high conflict shared custody situation, either parent should theoretically be able to get exclusive possession. However, with an allegation of abuse, that could easily tilt the balance against the OP.

Interestingly, it appears that it doesn't matter who actually makes the application for exclusive possession, either party can be granted it. But if I was a father facing a false DV accusation, I'd probably be looking for alternate accommodation. Why would a judge risk keeping an abuser in the house when he can just kick him out... for the sake of the children of course.
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Old 02-08-2013, 12:05 AM
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In my case the simple fact that my husband had money and many relatives in the area to temporarily stay with was an important factor in granting me exclusive possession. I have no relatives and my ex had wiped out the bank account so I wasn't in a position to up and move to another place. Sometimes it just comes down to convenience and finances.
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Old 02-08-2013, 12:08 AM
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Don't forget to have a digital recorder running at all times around your ex. It could be invaluable when she ups the stakes by calling the police to accuse you of assault. You want to be able to play that back to prove it didn't go down as she described.

Search the forum for "digital recorder" for more details on the rationale.

If there is no conflict, there's no need for one party to have exclusive possession. So if one spouse wants the other out, they need to create conflict.

If there IS conflict, legal precedence (aka gender bias) usually ensures that the man is the one booted out of the home, no matter the source of the conflict.

So stay focused, stay strong for the kids, do NOT lose your temper no matter how the ex provokes you.

Being pushed out of the house really puts you in a bad position for getting a timely and fair separation agreement.
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Old 02-08-2013, 12:18 AM
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Rioe has very good advice. I would also switch up parenting duties. For example, if your wife normally takes the kids to school and picks them up I'd make sure I did it at least 50% of the time from now on. Same goes for anything else. If this is not feasible due to your work situation then you should simply look at the whole situation and do what is best and most realistic for you.

Some people can live together after separation and others can not. Only you can decide which is best for your situation. Unless you are wealthy and can afford two houses, there will be some residential changes for either of you. If you get along relatively well now it might be a good time to agree on putting the house up for sale?
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