Steve Levitan: Exclusive Possession of the Matrimonial Home

According to TMZ, the divorce of "Modern Family" creator Steve Levitan is heating up as his wife, Krista Levitan, recently requested a court order that would bar Steve from going near the family home.

It seems that Krista also sought a restraining order after claiming that Steve has been abusive, harassing, and attending the family home without her permission. Steve has consistently denied Krista's allegations of abuse and assault. The judge hearing the request, TMZ reports, refused to grant Krista a restraining order against her husband.

Hypothetically, if Krista's allegations were true, what options could she have if this case were occurring in Ontario and the parties were still living together in the matrimonial home?

For many married spouses going through separation in Ontario, a common question is whether one spouse can evict the other from the matrimonial home and bar them from returning. While the idea of kicking your soon-to-be-ex-spouse to the curb is tempting, a married spouse does not necessarily have a right to do so if the parties live together in a matrimonial home.

The legal definition of a matrimonial home is essentially a home that was ordinarily occupied as a family residence at the time of separation.

According to section 19 the Ontario Family Law Act, both spouses have the equal right to possession of a matrimonial home regardless of whether one or both spouses legally owns the house. As such, even if Krista solely held title to the family home, she could not legally force Steve out and change the locks to prevent him from entering the property.

However, in very limited circumstances, one spouse may be able to obtain a court order against the other for exclusive possession of the matrimonial home. An exclusive possession order is a very extreme order as it essentially forces the other spouse to vacate the home and prohibits them from returning to the property.

This is an option that spouses should consider when they are experiencing abuse or harassment by the other spouse while they live together in the matrimonial home during separation.

According to section 24(3) of the Family Law Act, the court will assess the following criteria when determining whether an order for exclusive possession should be granted in the parties' particular circumstances:

  • the best interests of the children affected;
  • any existing orders under Part I (Family Property) and any existing support orders;
  • the financial position of both spouses;
  • any written agreement between the parties;
  • the availability of other suitable and affordable accommodation; and
  • any violence committed by a spouse against the other spouse or the children.

If Krista was successful in obtaining an exclusive possession order against her husband, then Steve would be legally obligated to vacate the home and stay away from the property. If Steve were to breach the Order, he would risk facing a monetary fine or even imprisonment as the police have authority under section 24(6) of the Family Law Act to arrest him without a warrant if they believe he has contravened the order.

From the scant information available about Krista's circumstances, it is difficult to hypothesize whether she would be successful on a claim for exclusive possession. The fact that it appears that Steve currently is able to afford other accommodation likely weighs in her favour. However, the court will also consider Krista's financial position and whether she could afford to find other accommodations herself.

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