Access to Marital Home

[KindSoul]

Hi All,

New to this group and have so so many questions but I will start with this one.

My ex finally moved out of our Marital Home this past summer after much pleading, begging, shouting and finally tears of frustration on my part. We separated in June of 2012 after I found out he was cheating but had been living under the same roof until this summer. Prior to this, he was living with this person part-time and finally moved out permanently much to my relief.

I have remained in the marital home with my two boys (they are with me full time). It has been on the market since last spring but has not yet sold much to my disappointment. My ex had the only mailbox key, house key, and garage door remote. It took me 2 months to finally get all of these items from him AFTER he had moved out. First he flat out refused, then he delayed, then he conveniently forgot. Anyway I got them all finally. Last week he showed up to see the boys, started in on me as soon as he walked in the door and demanded a copy of the house key "or else!". His words. Told me I had better have one for him this week.

I've explained to him that he still owns half the house from an investment point of view. I would never deny him that but this is no longer his "home". It is where I live and I am entitled to my privacy. He still makes himself right at home when he comes to see the boys. Even took a shower while he was here last week. I was beyond words! God forbid I have a family member over, a friend, or another man here because I would be scared of what would happen. He is a very volatile person with an explosive personality. He told me last week if he ever sees my father at the house he'll be sorry! I'm using PG version. So as you can see, I still cannot have any semblance of a normal life. I'm afraid to have anyone over in case he shows up unannounced. He also has removed some of our marital items from the home. I have to literally watch him like a hawk when he's here. Don't trust him at all as he's removed things while I'm in a different room.

So my questions are as follows. Is he allowed to demand a key? If yes, is he allowed to come in to the house uninvited and when I am not present?

Would truly appreciate hearing from anyone who either knows the legalities or knows from experience.

Thank you so much!

[blinkandimgone]

File a motion for exclusive possession of the home and make arrangements for him to visit the kids elsewhere.

[KindSoul]

Thank you so much for the reply blink! I will research that further to see how to proceed. Does it matter if he is paying half the mortgage and insurance? He is currently not paying child support at all. Can I still apply for the exclusive possession?

[blinkandimgone]

It doesn't matter, you can still apply. He has moved to a new residence and therefore has a new address, this should help things a lot. You may or may not be granted it, however the only way to know is to do it.

You probably want to get the ball rolling on equalization, before things get complicated and messy. PM me for details if you want to know what messy looks like.

[blinkandimgone]

Here's a link to a thread on the same topic - good info here:

http://www.ottawadivorce.com/forum/f...at-home-14323/

[KindSoul]

To be completely honest, I have no clue what equalization is but I will look it up! I haven't even hired a lawyer yet for a few reasons. First, I thought we could work things out amicably but now I believe that I may have been totally naive about that. The other reason is the expense. I lost my job after 9 yrs and am currently on EI and trying to support my two children alone. Even resorted to taking a part time job to try and make ends meet. Considering how much I was making before and the fact that I payed the bulk of all household expenses, it is truly disheartening to be in this situation. It's very difficult to see the light at the end of the tunnel.

Add to this the fact that his GF seems to find it amusing to taunt me. Sending text messages, phone calls, packages in the mail. God only knows what she says about me in front of my little guy. The oldest refuses to go over there and recently my youngest has said he doesn't like going there and wants to stay with me. That is mostly what has pushed me to reconsider a lawyer. I'm just afraid that I won't find someone who can help out given my financial situation. Does it get any easier?

Thank you for the link too blinky! Going to read that right now. You've been so helpful. Thank you :-)

[blinkandimgone]

Eep! Do NOY try to work anything out between yourselves if you have no idea at all what you're doing yet. You need to educate yourself on all the different things you need to consider. Start here...

Family Law - Ministry of the Attorney General

Research, research, research. Get your ducks in a row, see if you qualify for legal aid. The sooner the better. The longer you wait, the more complicated it gets.

[KindSoul]

Well I read an article on equalization blink (thank you!) and that may work against me. I was employed at the time of our separation (valuation date?) and making quite a bit more than him. He also has his own business and his accountant wrote off so much that his income is usually under 10k. Hope they take my current financial status in to consideration and the fact that he hasn't been paying any type of child support. I am honestly happy he does not want joint custody but that doesn't mean he can shirk his responsibilities which he seems to think is the case.

I had called legal aid previously blink and they weren't very helpful at all other than redirecting me to FLC who told me they couldn't help unless I had a certificate from Legal Aid. Typical runaround. I think I may have to go down there in person and speak with someone.

You are absolutely right though! I do need to deal with this sooner rather than later. Your info has been helpful in that I now understand the need and urgency of getting a lawyer ASAP. I really just want this over as soon as possible so that I can move on with my life and start living it rather than succumbing to his controlling ways. We are all (me and the boys) more relaxed now that he is out of the house. The boys were tense and we were always on edge not knowing how he was going to react to various situations. We literally walked on egg shells around him. Funny how all that instantly changed as soon as he moved out. But now, he is finding that he doesn't have the control over us he did before and he doesn't like it one bit. This might explain the crazy demand for the key and threats about my having family over to the house.

I will definitely go through the last link you sent me tomorrow (read the prior one and it was helpful!). I do like to be informed. Just needed a nudge I think in the right direction ;-). Thank you!

[arabian]

Blink is correct ... Interim motion for exclusive possession of home. This is just a temporary order that lets you live there until such time as the house is sold and legally allows you to change the locks. You might want to talk to the lawyer you eventually retain about getting a restraining order with police enforcement for the duration of the order. I don't think it is a good idea for him to see the kids at your home particularly if he can't behave. If the situation gets worse and you still haven't hired a lawyer you can get a peace bond by going to the courthouse and making application. If you have to call the police at any time, be sure to request the police file number.

You have every right to feel safe in your own home. A monitored security system might be a very good investment at this time. I know you are financially strapped right now but your safety is important. See if your lawyer can request the cost of this put in your exclusive possession motion. (If you don't ask you don't get).

If your ex's g/f continues to harass you call the police and talk to them. They can and will send someone to have a chat with her and tell her to cease and desist. Also have this put in the order addressing exclusive possession of the matrimonial home.

If you can, video tape your whole house - do a walk through. This way you have a current inventory and if he breaks in and steals things you have proof of your belongings. Until you get a court order in place he can take whatever he likes and yes go into the house as many times as he likes. Common decency should prevail but it doesn't in matters such as these.

Your interim order can also direct that he continues to pay mortgage and household utilities.

[standing on the sidelines]

Blink is correct ... Interim motion for exclusive possession of home. This is just a temporary order that lets you live there until such time as the house is sold and legally allows you to change the locks. You might want to talk to the lawyer you eventually retain about getting a restraining order with police enforcement for the duration of the order. I don't think it is a good idea for him to see the kids at your home particularly if he can't behave. If the situation gets worse and you still haven't hired a lawyer you can get a peace bond by going to the courthouse and making application. If you have to call the police at any time, be sure to request the police file number.

You have every right to feel safe in your own home. A monitored security system might be a very good investment at this time. I know you are financially strapped right now but your safety is important. See if your lawyer can request the cost of this put in your exclusive possession motion. (If you don't ask you don't get).

If your ex's g/f continues to harass you call the police and talk to them. They can and will send someone to have a chat with her and tell her to cease and desist. Also have this put in the order addressing exclusive possession of the matrimonial home.

If you can, video tape your whole house - do a walk through. This way you have a current inventory and if he breaks in and steals things you have proof of your belongings. Until you get a court order in place he can take whatever he likes and yes go into the house as many times as he likes. Common decency should prevail but it doesn't in matters such as these.

Your interim order can also direct that he continues to pay mortgage and household utilities.

Half the mortgage, house insurance and property taxes I can understand, but not utilities. She is the one using the services, not him so it should not be up to him to pay that.

The OP should also look into occupational rent. Also if the house has been on the market since the spring, maybe time to rethink that. Price reduction maybe?

[Links17]

Get a lawyer, you will eat him alive.

He has no idea what is coming. You are going to get sole custody and exclusive possession and I believe he'll be paying for everything since you aren't working. Don't rush to sell the home you benefit by staying in the home with the kids as long as possible. Its all pretty dirty and unethical but it should work.

[limer]

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

Section 24 Deals with Exclusive Possession
Part 1 Details Equalization a bit

[arabian]

As it would be an INTERIM order, and in the interest in getting the couple to settle their finances in an expedient manner, the judge can rule for ALL house expenses be paid by the STBX while she and the children reside in the home. At the time of equalization and determining CS and SS the STBX is credited with his portion. It all comes down to careful wording of the interim order.

An Interim order can be a useful first step in getting an uncooperative bully to toe the line.

[Rioe]

Four aspects to separation: Equalization, Child Custody, Child Access and Spousal Support.

Equalization – this is division of property, assets and debts. The default is that each spouse calculates their net worth at date of marriage and at date of separation. The value of the matrimonial home is always considered to be zero at marriage date, even if one spouse owned it beforehand. Then both amounts are pooled and divided by two. So each spouse leaves the marriage with the same increase in net worth over the course of the marriage. This is just a bunch of math. You don’t have to divide everything exactly down the middle – one person could keep their pension while the other gets the RRSPs, one person keeps the marital home and the mortgage while the other gets the van plus some cash, whatever works for you and makes it add up fairly. Sit down and figure out your numbers. If you have a lot of debt, you'll probably have to sell your house as neither of you could qualify to take over the mortgage on your own. Then apply the proceeds to whatever debt can't be divided up. Then see what's left.

Child Custody – this is decision-making for the big issues related to the children, education, religion, health, that sort of thing. Assume joint, unless one parent is truly completely disinterested, or abusive to the children.

Child Access –this is the residential arrangements for the children. Assume 50-50 time sharing. This is becoming more and more the standard anyway. Consider possible schedules (most common are week about or 2-2-5-5), equitable division of holidays, etc. Or, one parent may end up with most of the access. Once access is determined, child support can be calculated automatically based on each of your incomes and the access schedule you end up with.

Spousal Support – this is financial support from a high income spouse to a low income spouse, who got that way due to career sacrifices like staying home to care for children or moving for the benefit of the other spouse.

As you have recently lost your job and your ex is self-employed, determining what income to use for each of you may be tricky.

That's separation in a nutshell.

[limer]

It sounds like your Ex is going to be very uncooperative at this junction where you honestly should obtain legal counsel.

I would suggest that even within the first letter from your lawyer that you send him (at least) partial or interim measures for him to agree to in order to keep you and your children afloat (Exclusive Possession, 1/2 Matrimonial Home minus utilities, CS to help cover your 1/2 Matrimonial, potential SS).

Don't let him go back and forth which will run your precourt costs up.

Talk to your lawyer about time frames of courts:
Application: Two months to first Case Conference
Motions (thereafter): 2-4 weeks

An emergency motion might be considered if you can't keep the house afloat with any potential threats of foreclosure where your children will be put at risk.

Good luck.