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Factual Background

The parties in this case were married for 21 years before they separated in early 2020. During the marriage, they lived in the matrimonial home which was owned by the husband’s father. The parties have three children together, two of whom are adults. The youngest child is 13 years of age. The wife alleges that she was emotionally, physically and financially abused by the husband and his father throughout the parties’ relationship. The wife claims that she was prevented from learning English and was not allowed to keep the income she earned from working for the husband’s father’s cleaning company.

There were numerous incidents of serious physical violence. The husband was criminally charged for an assault in January 2020 and apparently breached his bail conditions by returning to the matrimonial home. The wife deposes that the husband’s father financially coerced her into letting the husband back into the matrimonial home by raising the rent required to live in the matrimonial home, which he knew the wife could not afford. The husband then committed a further assault in February 2020 and the wife fled the matrimonial home to stay with a friend. Since that time, the husband and his father refused to let the wife re-enter the matrimonial home and severely limited her parenting time with the youngest child.

The wife then brought an urgent motion for relief, seeking exclusive possession of the matrimonial home and an order that the youngest child reside with her, or in the alternative, an order for a specified parenting schedule, and orders related to parenting conduct. The husband argues that the wife has no legal interest in the home and that his father has a tenant who has taken up all the space in the home such that the wife can no longer move in. The husband also states that the motion is not in fact urgent.

Legal Analysis

With respect to the issue of urgency, the Court found that this matter is evidently urgent as the wife is currently homeless and unable to see her youngest child during a public health crisis. The Court noted that the husband’s and his father’s behaviour suggest that they are working together to obtain a tactical advantage over the wife. Despite the husband’s assertions, the parties’ history of occupying the home and their relative contributions to the home’s upkeep suggest that, at least for the purposes of the urgent motion, the home in question is a matrimonial home under the Family Law Act.

When it came to the relationship between the wife and the youngest child, the Court found that they have had a close and loving relationship and that there was no reason why the child should not primarily reside with the wife. The Court was especially concerned by the husband’s attempt to alienate the child from the wife by refusing to let the child spend any time with her while she is living at her friend’s home, despite being fully aware that the wife had no other place to turn to during this pandemic.

The Court also rejected the husband’s evidence that the tenant has taken over the entire matrimonial home instead of just the basement apartment as per the previous lease agreement. Since the husband cannot live in the matrimonial home as a result of his bail conditions and the wife cannot secure alternate accommodations with the financial resources available to her, it made sense for the wife to be granted exclusive possession of the matrimonial home until further court order or written agreement between the parties. As such, the wife was able to return to the matrimonial home and have the parties’ youngest child reside primarily with her pursuant to a specified parenting schedule that also gave the husband parenting time with the child.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.