In the case of Hollinger v. Wang, the wife brought a motion for exclusive possession of the matrimonial home on a temporary basis. The wife argued that the husband’s abusive behavior towards her and the disruptions he caused to the business she operates out of the matrimonial home justifies a court order for exclusive possession.
The parties separated after a four-year marriage and had no children. The wife is the registered owner of the matrimonial home and the husband owns a two-bedroom condominium in Barrie, Ontario. Post-separation, the wife contends that the parties’ living arrangement in the matrimonial home has become untenable. The wife operates a traditional Chinese medicine practice out of the matrimonial home, which is being disturbed by the husband’s hostility and anger, leading her to have to cancel appointments with patients and hindering the development of her business. The wife alleges that the husband has an alternate residence available, namely the condominium in Barrie, and that he could move there if the court awards her exclusive possession of the matrimonial home.
Section 19(1) of the Family Law Act (FLA) provides that both spouses have an equal right to possession of a matrimonial home. However, section 24(1)(b) of the FLA empowers the court to make an order for exclusive possession of the matrimonial home or part of it.
Per section 24(3) of the FLA, the court needs to consider the following factors before making a determination:
- the best interests of the children affected;
- any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;
- 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.
The onus is on the spouse seeking exclusive possession to demonstrate that continued co-habitation in the home is impractical. The balance of convenience must favor the party seeking exclusive possession. However, unpleasantness and inconvenience are the expected consequences of sharing a roof during the divorce process. These factors cannot serve as a legal argument for exclusive possession.
The wife argued that the husband’s behavior qualifies as violence within the meaning of section 24(3) of the FLA, which is not limited to physical abuse but can also include emotional abuse. However, the Court found that the parties’ post-separation living arrangement does not rise to the level of violence recognized by section 24(3). In particular, the compatibility of co-habitation with a spouse’s operation of a home-based business is not a relevant factor under the FLA and is not a valid reason to give the wife exclusive possession of the matrimonial home, in this case.
In summary, although living under one roof post-separation can be – and often is – unpleasant, a spouse’s interest in operating a business out of the matrimonial home cannot trump the other spouse’s right to use the home as a residence.
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