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SEPARATE AND APART (TOGETHER): How the Family Court is Approaching Exclusive Possession During a Global Health Pandemic

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Following the breakdown of a marriage, “both spouses have an equal right to possession of a matrimonial home.” 

Living in the same home as a former spouse can be difficult and may exacerbate the stress of separation. In limited circumstances, a spouse can apply to the court for an order for exclusive possession allowing them to remain in the matrimonial home and requiring the other spouse to leave. On a motion for exclusive possession, the court will consider the following factors in determining if an exclusive possession order is appropriate: 

  1. The best interests of the children (if any); 
  2. Any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations; 
  3. The financial position of both spouses; 
  4. Any written agreement between the parties; 
  5. The availability of other suitable and affordable accommodation for a party; and 
  6. Any violence committed by a spouse against the other spouse or the children.
Violence “is not limited to physical abuse, but can include emotional abuse and intimidating words or conduct.”

In the pre-COVID-19 world, the Honourable Justice McGee described orders for exclusive possession as “dramatic in effect” and “highly prejudicial to the dispossessed spouse.” In Her Honour’s view, “An order for exclusive possession should not be made on a motion where there is conflicting evidence that requires findings of credibility that are only available at trial.”

Fast forward to March 2020, when family courts have closed for all but urgent matters, governments across the world have declared states of emergency, and it has become our civic duty to stay home. What happens when staying home means residing 24/7 with your ex-spouse? 

In Guerin v. Guerin, the mother brought a motion seeking, in part, an order for exclusive possession based on her concerns that the father was not following COVID-19 protocols (i.e. frequent hand washing, social distancing) and was putting her and the children at increased risk of infection. 

The mother provided medical evidence that she suffered from serious medical conditions that placed her at higher risk of contracting COVID-19 and “higher risk of complications/more severe respiratory infections.” Given her ongoing medical conditions, the mother was “going beyond the COVID-19 protocols and guidelines which are geared to the general public.”

Further, the mother lead evidence that the father left the house multiple times between March 19 and 23, sometimes more than once a day, and either failed to tell the mother where he was going or was misleading about his activities. For example, on March 19 the father advised that he was going for a drive but his new partner later messaged the mother to confirm that the father had been spending time with her. The Honourable A. Doyle acknowledged that “the father is not obliged to provide details of his whereabouts” to the mother but found that in the current environment “his lack of response and at times, misleading information, of where he has been places undue stress on the mother and places her health at risk.” 

As a preliminary matter, Justice Doyle held that the mother had satisfied the onus to demonstrate urgency as set out in Ribeiro v. Wright, because the mother provided specific evidence that (a) she was following the COVID-19 protocols and in fact, was taking additional precautionary measures and (b) the father’s behaviour was inconsistent with the COVID-19 protocols. 

Justice Doyle went on to consider the mother’s request for exclusive possession and found that: 

  1. A deterioration of the mother’s health would affect the children; 
  2. Two of the children had asthma and “any health condition could possibly affect an individual’s general health”; 
  3. The father had alternate accommodations; 
  4. The father’s failure to wash his hands and his attitude towards the mother’s requests to share information about his whereabouts placed the mother and the children at risk; and
  5. The father “failed to provide sufficient details and explanations for his numerous absences from the matrimonial home nor has his girlfriend provided evidence that she has been following the COVID-19 measures.” 

Due to the father’s failure to take the “increased risk [of COVID-19] to the mother and the children seriously,” the mother was granted exclusive possession of the matrimonial home on a without prejudice basis until at least April 17 and the father’s contact with the children was limited to electronic means. 

The Guerin decision adds to the growing body of COVID-19 case law and reiterates the need for parents to be sensible, follow the government recommended COVID-19 protocols, and above all, work together to care for their children in this unprecedented time.  

A word of caution – the Guerin decision should not be read to stand for the proposition that every motion for exclusive possession will be deemed urgent and will meet the criteria set out in   Ribeiro v. Wright. Rather, Justice A. Doyle’s comments emphasize that when the health and safety of a child or parent is at risk then the situation may be deemed urgent and the court will intervene as necessary. 

  • Megan O’Neill

About the Author

Cheryl Goldhart and the team of lawyers at Goldhart & Associates work exclusively in the area of family law. They have the experience and dedication to assist clients achieve their objectives.

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