A common issue that family litigants confront pertains to who stays and who leaves a home post-separation. This issue affects all cohabiting couples, whether common law or married, because of its far-reaching consequences on other areas of separation. In this article, we briefly explore this area of family law called “Exclusive Possession”.

To be granted exclusive possession of a home means a person gets to stay in a home while their spouse or common-law partner is forced to leave. Everybody wants exclusive possession as it can provide a great advantage in a case. The benefits of getting exclusive possession are the following.

• Firstly, you get to stay while the other party leaves. You do not need to pack; you do not need to look for a place; and you do not need to reorient your life and deal with the stresses of a move. You get to remain where you are while the other side is made to run around stressing themselves on top of the stresses of separation.

• Secondly, by staying in the home, you have a stronger case for being awarded primary care of the children because it is less disruptive for the children to remain in the home. Staying in the home can be in the children’s best interests because it saves them from the stresses of a relocation – no new schools, no need to develop new friends, no need to get used to new accommodations.

• Thirdly, if you get primary care of the children because you have exclusive possession, it is also likely that the other side will have to pay you child support. So on top of staying in your home, and keeping the children, the other side will have to pay you to have a less stressful experience.

• Fourthly, if you are the non-owning spouse and you get exclusive possession, the other party may be required to pay for the home’s carrying costs instead of support. Routinely carrying costs can exceed the amount of support owed. Although this benefit can be clawed back later via occupation rent, the fact that you defer such an obligation is itself a benefit.

The benefits are so good that exclusive possession is a hotly contested issue which routinely requires court attendance.

MARRIED COUPLES

For married couples that attend court for exclusive possession, their applications (or really motions) are governed by the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”). A summary of the principles that come from the legislation are as follows:

• Both spouses have an equal right to possession of a matrimonial home (19(1)). It is important to note that a matrimonial home is a residence that is owned by at least one of the spouses (18).

• Either spouse can apply to the court to be granted exclusive possession of the matrimonial home (24(1)).

• To be granted exclusive possession, the court looks at the following questions:

1. Will granting exclusive possession impact the best interests of any involved children? Specifically, how disruptive will potential moves be on the Children; and what are their views or preferences? (24(3)(a))
2. Are there any orders for payment of equalization, or support? Is it being paid? (24(3)(b))
3. What is the financial position of both spouses? (24(3)(c))
4. Are there any written agreements between the parties concerning possession? (24(3)(d))
5. What is the availability of other suitable and affordable accommodation for each of the spouses? (24(3)(e))
6. Was there any violence committed by a spouse against the other spouse or the children? (24(3)(f))

Although getting exclusive possession can provide many advantages, there is also a dark side of which separating couples must be aware. Conflicts over it can incentivize litigants to inflame matters, exaggerate allegations, and engage in portraying the other side as extremely as possible. This leads to longer and more expensive disputes and scorched earth strategies that generate resentment and hate that remains for years.

For instance, spouses routinely contact the police with allegations of abuse to have the other spouse removed from the matrimonial home as a way of getting exclusive possession without the need to go to court. Allegations of domestic violence can lead to charges with bail conditions that prevent spouses from coming home. Then, in court, the mere evidence of police involvement is proffered as evidence of violence committed by a spouse (24(3)(f)).

Not only do these circumstances create incentives to falsify and exaggerate, in the process of being arrested a spouse can also have his/her life severely harmed. Some spouses lose their jobs as a result of the arrest, so they become both homeless and jobless. Courts can then pile on the devastation by imputing the arrested spouse with income for support purposes.

This is a great recipe for deteriorating mental health, and a fixation to return the favour to the complainant spouse with as much force and swiftness as the initial exaggerated police charge. Sometimes, in vying for the status as the bigger victim of violence under (24(3)(f)), litigants can also cross the line in their descriptions of the other side. In one case last year, Alsawwah v. Afifi, 2020 ONSC 2883, where the parties attended court over exclusive possession, the Court admonished the parties for their “unnecessary war of invective”.

Although there are broader policy issues that must be looked at (like whether we provide the right incentives to people in this area of the law, and whether this creates a better society), the fact is that obtaining exclusive possession can provide benefits.

UNMARRIED COUPLES

For unmarried couples, the benefits and downsides of exclusive possession are the same except the law governing the relief of exclusive possession is different.

For unmarried couples, section 96(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 governs exclusive possession. This provision allows courts to apply the rules of equity and common law – including ancient principles like the “tort of trespass”. So here, the unmarried partner that owns the home says to the court that the unmarried non-owner should leave the home because they are no longer welcome to stay.

Unmarried couples do not have an equal right to possession like married couples. The legal owner has the advantage in these cases. However, there are situations where the Courts have permitted the unmarried partner to remain in a home because of “lawful justification”. This means that the non-owning unmarried partner can remain in a property because he/she made contributions to the home, or he/she is financially dependent on the owner of the property.