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  • 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,

  • #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).
    Source - Family Law Act, R.S.O. 1990, c. F.3

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    • #3
      thanks, any links on how judges would interpret/apply these criteria.

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      • #4
        If that is the case why don't you make a case for exclusive possion and have her move out?

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        • #5
          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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          • #6
            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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            • #7
              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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              • #8
                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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                • #9
                  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.

                  Comment


                  • #10
                    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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                    • #11
                      Originally posted by arabian View Post
                      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.
                      Yeah, I've read that one a lot actually. If one of the spouses has relatives in the area, he or she has a good chance of getting the boot from the matrimonial home. It actually makes sense, which surprises me, family law rarely works like that.

                      Of course, if you manage to get the kids on an "interim" basis, then you get the house no matter what, and the poor booted spouse has to continue to pay for the matrimonial home while somehow trying to afford an apartment, and a family lawyer. (And a criminal lawyer if the spouse is also facing a bogus DV charge).

                      Frankly, I think that an order for exclusive possession should also come with an order to put the house up for sale immediately.

                      Comment


                      • #12
                        I would agree that some sort of decision should be at least pending about the home at the time of the temporary possession order. I have read plenty of posts about how people drag the disposal of the matrimonial home on for ridiculous amounts of time. The higher the animosity, the longer things take to resolve. If one party is going to buy the other party out of the home I think it would be helpful to have some time limits imposed. By imposing time limits it might very well put some pressure on the lawyers to get their acts together as well. Perhaps lawyers shouldn't be allowed to collect fees until a percentage or stage of equalization process was achieved? That might be very interesting.

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                        • #13
                          Random Scary Case

                          Meetke v. Meetke

                          Father has limited resources, no proof of violence in the marriage (the father is legally blind, for crying out loud), but the mother has custody, went to a shelter, and claimed that she was still fearful.

                          Mother asked for exclusive possession of the house. Father said he would live in the basement that has a separate entrance. Let's go read the judgement:

                          [16] The fact that Ms. Meetke has her bedroom in the basement is not significant to this decision. There are three bedrooms upstairs. I am satisfied that arrangements could be made for Ms. Meetke to have a bedroom upstairs, with the children residing in the other two bedrooms. Although that arrangement may be inconvenient, it certainly pales in comparison to the inconvenience of Mr. Meetke sleeping at the Salvation Army, or at Shelter House, or having nowhere to live.

                          [17] Similarly, although the laundry facilities are in the basement, and although Mr. Meetke states that he can be away from the basement when Ms. Meetke wants to do laundry, Ms. Meetke could always resort to a laundromat. Again, the balance of convenience between Ms. Meetke having to go to a laundromat and Mr. Meetke having nowhere to live weighs heavily in favour of Mr. Meetke.
                          We know where this is going, right? The situation sucks, but you don't throw a blind guy onto the street. Judges have seen this type of crap before, and by God they don't stand for shenanigans.

                          Let us continue reading...

                          However, although I have great concern about Mr. Meetke’s situation and I do not at all underestimate the difficulties that he faces, I have determined that in the best interests of the children I cannot grant the relief that he seeks on his motion.
                          Huh?

                          [21] Ms. Meetke deposes that the children fear Mr. Meetke and that she, herself, fears him to the extent that if he is permitted to return to the home, albeit the basement, she and the children will move out of the home to a women’s shelter. Ms. Meetke has interim, interim custody of the children.
                          There we go. If the mother has the kids, and cries violence (no matter how ludicrous) then the father is going to get booted from the house, no matter how reasonable he is, or how desperate the financial or other circumstances of the father.

                          Crazy case.

                          Crazy system.

                          Comment


                          • #14
                            Originally posted by Janus View Post
                            Random Scary Case

                            Meetke v. Meetke

                            There we go. If the mother has the kids, and cries violence (no matter how ludicrous) then the father is going to get booted from the house, no matter how reasonable he is, or how desperate the financial or other circumstances of the father.

                            Crazy case.

                            Crazy system.
                            There is more to it than what you posted. The children are teenagers, and able to choose which parent they want to live with. They previously chose the mother, who has interim interim custody (whatever that means!). So if the mother leaves the home, they will go with her. Best interests of the children means that they stay in the home, therefore the mother is the parent who must also stay in the home. Not to mention, she has the greater income and would be the one to keep the home after everything is finalized. I don't think the judge liked what he had to do, but he was only bringing the inevitable closer.

                            But I hope she has to pay him equalization and SS so he can find and afford his own place promptly!

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                            • #15
                              I am the poor sap that got kicked out of my house and have to pay all the expenses and FULL child support AND some spousal support so my cheating wife can continue to be a stay-at-home mom (thank god!) and drag out the case as long as possible while she collects thousands of dollars in child support, spousal support and government assistance and I go in debt every month even before legal fees. My lawyer tells me tough luck.... I hope I can recover something in negotiations or or provisional measures....

                              The biggest scam in the divorce period is probably the interim measures... You can get kicked if your wife argued and screamed at you..... then she gets defacto custody and cash money + she drags out every process as long as possible because the longer it takes the more she makes and the more you go in debt.... Because its worse for a kid to hear an argument than be separated from their father for god knows how long.

                              Thank god Karma already kicked in already though.... but still I have never seen a more riduculously unfair thing occur in my life.

                              Comment

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