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In this judgement of Justice Horkins of the Superior Court of Justice, the court reviews the criteria for rewarding exclusive possession on an interim basis. At the time of the Motion, both parties still resided in the matrimonial home with the two children. In the end, Justice Horkins was forced to rummage through the parties conflicting affidavits in order to determine the best interim arrangement for this high conflict family. While Justice Horkins recognized the difficulty of making interim determinations based on affidavit evidence alone, she was ultimately convinced that the children’s mental health and well-being would be compromised if an interim order for exclusive possession was not made.

Factual Background

This case is just one example of many in family law where it is difficult to fathom the level of conflict experienced by the family members, and particularly, the children.  Nevertheless, Justice Horkins gives a detailed account of the parties’ past and current circumstances leading up to the Motion.

The parties were married on December 7, 1996 and separated in 2012, although there was some disagreement as to their exact date of separation. The parties had two children, A, who was 16 at the time of the Motion, and G, who was 12.  Both parties were well-educated, high income earners. The Applicant Mother was the former vice president of TD Bank, and currently held a position with the Ontario Securities Commission earning approximately $100,000 – $120,000 per year. The Respondent Father was a self-employed mining analyst and consultant who reported an income of $1.8 million over the 2010-2011 tax years. On Motion, he claimed that, in 2012, his income had dropped to $110,372.

The unencumbered matrimonial home in question was registered solely in the name of the Applicant Mother and was valued at approximately $1.5 million. The Applicant Mother claimed that she was primarily responsible for all costs associated with the matrimonial home including the mortgage, and that the husband had only contributed slightly to the cost of renovations and upgrades.  In contrast, the Respondent Husband claimed that he had contributed approximately $200,000 to the home.

On the Applicant Mother’s Motion for exclusive possession, the Father sought an order that the parties and children remain together in the matrimonial home pending resolution of the court application.  He further claimed that he had no other accommodation available to him in Toronto, and that he could not afford alternative accommodation, especially if he were also ordered to pay child support.

The Court’s Analysis

Justice Horkins began with a review of the legal framework, and specifically s. 24 of the Family Law Act (FLA), which authorizes the court to grant one party exclusive possession of the matrimonial home. S. 24(3) sets out the criteria that the court must consider in deciding whether an order for exclusive possession should be granted, including: the best interests of the children affected; any existing orders; the financial position of both spouses; any written agreements between the parties; the availability of other suitable and affordable accommodation; and any violence committed by a spouse against the other spouse or children. S. 24(4) also directs the court to consider the possible disruptive effects on the child/children to move to other accommodation and the child’s views and preferences where they can be reasonably ascertained.

Acknowledging that certain criteria do not apply in this instance, Justice Horkins moved to her analysis of the applicable criteria. First, noting that the parties’ financial position was clearly sound, especially given that neither party reported debts and both had considerable savings, Justice Horkins rejected the Respondent Father’s contention that he did not have the resources to afford to rent alternative accommodation.

Second, the court examined whether there had been any “violence” committed by a spouse, holding that violence is not restricted to physical violence. Rather, it includes

Psychological assault upon the sensibilities of [another] to a degree which renders continued sharing of the matrimonial dwelling impractical. Where the conduct is calculated to produce and does in fact produce an anxiety state which puts a person in fear of the other’s behaviour and impinges on that person’s mental and physical health, violence has been done to his or her emotional equilibrium as if he or she had been struck by a physical blow” (Hill v Hill, 1987).

Justice Horkins examined the parties’ affidavit evidence as well as an incomplete assessment completed by the daughter, A’s, psychotherapist. The Applicant Mother put forth documentary evidence describing the home situation as such that the children feel that they are “living as prisoners” in their home. She further claimed that when the Respondent Father was home, he would give the children the “silent treatment” and would instigate conflict through “passive aggressive or simply aggressive means.”  Finally, the Applicant Mother described a situation where the children were scared to set their father off, and would avoid him out of fear that he would lash out.  The psychotherapist’s assessment, although ongoing, bolstered the Mother’s story of events and painted a frightening picture for A if the status quo were to remain. The excerpt from the assessment at paragraph 25 is particularly illustrative:

…preliminary results certainly suggest that A is under considerable stress and suffering from symptoms of anxiety and depression…she has become increasingly pessimistic about the future and…feels a sense of hopelessness and despair. She also exhibits a diminished capacity for pleasure, a preoccupation over lessened adequacy, pessimism, a loss of confidence, feelings of worthlessness and resentment… This is not to suggest that she is currently suicidal but that she is feeling so angry, depressed and hopeless, that she may think of suicide, at times, as way out of the difficult situation she experiences herself to be in.

Justice Horkins then considered whether the son, G’s, relationship with the Respondent would suffer as a result of the Applicant Mother receiving exclusive possession of the matrimonial home. In the end, the court was not convinced that G’s relationship with his father would suffer if the Father were to move out of the matrimonial home. Ultimately, the court held that it was not in the children’s best interest for the father to continue to reside with the family in the matrimonial home, as it was detrimental to A’s well-being.

Noting the risks associated with the current living situation, Justice Horkins held that the situation was too dire to postpone a decision regarding exclusive possession until trial. While the court always prefers to base such decisions on evidence that has been cross-examined, in this case it was in the children’s best interests to make an interim order for exclusive possession.