This was a motion brought by the husband to set aside an order granted in an ex parte motion (an urgent motion brought without notice to the other party) the wife had brought in December 2022.
The parties had separated over four years ago and lived separately in the matrimonial home, with the father residing in the basement, and the mother and children taking the main floor.
The wife, at her ex parte motion, alleged that the husband had created an untenable living situation at the matrimonial home, and so she sought exclusive possession of same. She submitted that the husband had serious mental health issues, consumed alcohol excessively, and seemed to be on a mission to destroy the basement in which he was residing. The wife claimed the basement was a complete mess, due to the husband’s deliberate reckless conduct, with his clothes and garbage being strewn about, both inside the basement and in the backyard. She submitted that the husband went so far as to smear his feces on the bathroom walls, and then use the children’s towels to clean up. Her motion was granted.
The husband now brought this motion alleging that the wife’s motion should not have been granted. He sought interim exclusive possession of the home and primary residence and joint-decision-making for the children.
He explained that he suffered from a medical condition, requiring colostomy bags and that the rupturing of the bags was the reason for the feces in the basement. He claimed that the photographs of the messy basement the wife had provided were not an accurate representation of the basement’s everyday state.
Should the interim orders sought by the husband be granted?
The court looked at section 24 of the Family Law Act, regarding orders for possession of the matrimonial home. It noted that it had the discretion to make the order and that courts generally will not disturb spouses’ respective rights to reside in the matrimonial home.
Taking into consideration all of the evidence, the court found that there was objectively compelling evidence showing that the living situation in the home was intolerable when the husband was in the basement. The court acknowledged that such an environment would have had a negative impact on the children’s well-being.
Regarding decision-making, the court found there was too much conflict for joint decision-making to be a viable option. Since the parties had conflicting evidence regarding their historical caregiving roles, the court’s orders would be on an interim without prejudice basis.
The wife was awarded sole decision-making responsibility and the primary residence of the children. The husband was to have parenting time in accordance with the children’s wishes.