Temporary Exclusive Occupancy of Family Residence in Ontario

Koehler v. Koehler, 2015 ONSC 5777, addresses the issue of interim exclusive occupancy.

Husband sought an order for exclusive occupancy of the matrimonial home awaiting trial. Wife moved to sell the matrimonial home.

By way of background, husband lived in the matrimonial home with two daughters who attended university. The younger teenaged child resided with the wife. Husband earned $225,000 annually and wife earned $25,000. Wife lived in cooperative housing at a standard of living far below that which she was accustomed to during the marriage.

Section 24(1) of the Family Law Act, R.S.O. 1990, c. F.3, empowers the Court to grant an order for exclusive possession regardless of ownership of the matrimonial home. The order may be interim in nature under subsection (2).

The Court must consider the following criteria established by subsection (3):

  1. the best interests of the children affected;
  2. any existing family property and support orders;
  3. the financial positions of both spouses;
  4. any written agreements between the parties;
  5. the availability of other suitable and affordable accommodation; and
  6. any history of family violence.

With respect to the best interests of the child, the Court must consider:

  1. the possible disruptive effects on the child of a move to other accommodation; and
  2. the views of the child if they can reasonably be ascertained.

The sale of a matrimonial home is governed by the Partition Act, c. P.4, sections 2 and 3 in particular.

Under section 2, all joint tenants, tenants in common, etc may be compelled to make partition and sale.

Under section 3, any person interested in land in Ontario, etc, may apply to Court for partition or sale under the Court’s directions if the Court finds the order advantageous to the interested parties.

Some case law was cited.

Butler v. Butler (1998), 1998 CanLII 4726 (ON SC) specifies that a joint tenant has a prima facie right to sale prior to trial, and this right exists unless the other joint tenant has made claims that would be prejudiced if the property were sold.

Silva v. Silva (1990), 1990 CanLII 5400 (BC CA), a British Columbia case followed by Ontario courts, reaffirmed that a joint owner has a prima facie right to partition and sale but the order should not be made where it can be shown that it would prejudice the other spouse’s rights under the Family Law Act. In such a case, the issue should be saved for trial.

Lastly, Martin v. Martin (1990), 31 R.F.L. (3d) 210 (Ont. Ct. Gen. Div.) provides that the Court is not to “rubber stamp” a partition motion and these orders may rarely be made.

Here, Husband’s motion failed because he did not provide any evidence as to the views of the children. The Honourable Mr. Justice Harper explained “In considering the best interests of the children, I must, not may consider their views and preferences where they can be reasonably ascertained. That evidence was not put before me.”

Koehler is a reminder to lawyers to always be aware of evidentiary requirements. It is also a roadmap to exclusive occupancy motions and should be kept in mind for that purpose.

Jeffrey L. Hartman 


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