BACKGROUND
The Applicant Husband brought a Motion for an Order for exclusive possession of the matrimonial home as well as for an Order that the divorce be severed from the corollary relief proceedings. The Respondent Wife brought a Motion for an Order for exclusive possession of specifically her bedroom and the washroom in the matrimonial home. She also sought a fixed schedule for the use of the kitchen and other common areas of the house.
ISSUES
- Should an Order for exclusion possession of the matrimonial home be granted to either party?
- Should the divorce be severed from the corollary relief proceedings?
ANALYSIS
In analysing the Respondent Wife’s claim for exclusion possession, the court considered the fact that she remained hopeful that she would reconcile with the Applicant Husband. They further noted that she did not contribute to expenses in the house and that the Applicant Husband’s parents owned a 66.6% interest in the home. The Respondent Wife was not a registered owner of the home. Both parties alleged that the other had been abusive and the Applicant Husband had entered into a peace bond after he was charged with assault against the Respondent Wife. The Applicant Husband further claimed that the Wife had sexually assaulted him, and his mother submitted medical notes suggesting that the stress in the home was causing her to have sleep issues.
In reviewing the evidence as a whole, the Court noted that an Order for exclusive possession should not be made where there is significant conflicting evidence that would require credibility findings. The Court found that both parties’ claims of abuse fell short of the clear and cogent evidence required for exclusive possession, especially where the safety of children is not in question.
The Court deemed that the conduct exhibited between the parties, which was rude, insulting, demeaning and childish- was not sufficient as grounds for an Order for exclusion possession.
Furthermore, it was not unreasonable for the Respondent Wife to refuse to vacate the property when she was attempting to assert a trust claim for an interest in the property.
Finally, the Court refused to sever the divorce from the corollary relief proceedings. Had they done so, the Court commented this would prejudice the Respondent Wife’s unresolved claim to an interest in the property. This is because the Applicant Husband would be able to sell or encumber the property without her consent. This could then affect the Respondent Wife’s ability to realize any potential interest in the property she may have.
CONCLUSION
The Court declined to make any Order for exclusion possession or to sever the divorce proceedings from the corollary relief proceedings.
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