In Colasuonno v. Colasuonno, 2020 ONSC 2061, the Respondent Mother brought an urgent motion seeking various orders related to the exclusive possession of the matrimonial home. In addition to having exclusive possession of the matrimonial home, the mother asked that the parties follow a nesting arrangement, with the father having parenting time with the children in the matrimonial home every Wednesday overnight and on alternate weekends.

Factual Background

The parties were married in September 2012 and separated some time in 2019. They have two children who are 3 ½ and 6 years of age. The mother stated that she had to leave the matrimonial home with the children in December 2019 as a result of the increasing level of hostility and conflict between the parties. The mother returned to the matrimonial home with the children for Christmas but eventually moved to live with her parents in January 2020, where she and the children have been residing ever since. The mother argued that the parties cannot reside in the same house due to the level of conflict and proposed a nesting arrangement whereby each parent would reside with the children in the matrimonial home during their parenting time. To demonstrate the urgent nature of the motion, the mother submitted that her parents are experiencing respiratory issues and that she can no longer live there with the children during the COVID-19 pandemic.

The father argued that the parties can live separate and apart in the matrimonial home. He objected to the mother’s suggestion that he move out of the matrimonial home to live with his parents while she has exclusive possession of the home, given that his parents are also elderly and have health issues that may be exacerbated by COVID-19.

Legal Analysis

According to section 19(1) of the Family Law Act, both spouses have an equal right to possess the matrimonial home. However, under section 24, the Court may direct one spouse to have exclusion possession of the home, provided that the factors set out in subsection 24(3) and (4) indicate that an order for exclusive possession is appropriate. In this case, the most relevant factors were the best interests of the children affected, the respective financial situation of the parties, and the availability of alternate accommodations.

The onus is on the party seeking exclusive possession to demonstrate that continued cohabitation in the matrimonial home is impractical or threatens the wellbeing of a child. Continued use must be more than inconvenient or unpleasant and the balancing of factors set out in subsection 24(3) and (4) must favour the party seeking exclusive possession. The Court recognizes that an order for excusive possession is dramatic in effect and highly prejudicial to the dispossessed spouse.

Based on the evidence submitted, the Court found that there were issues with the mother’s Affidavit. For example, the mother failed to explain why the children cannot live in her parents’ home when there were two spare bedrooms available, and she also minimized the health conditions of the father’s parents. Moreover, she provided little evidence to substantiate her parents’ respiratory issues.

While it is typically in the children’s best interests to remain in the matrimonial home, that alone is not sufficient to grant one party exclusive possession. It turned out that the mother made promises to the children that they will return to the matrimonial home. Not surprisingly, the Court held that these promises should never have been made and cannot serve as a basis for exclusive possession. The Court found that the given the size of the matrimonial home, the parties can live separate and apart in the same home without inevitably engaging in further conflict.

With respect to alternate accommodations, the Court found that the mother had a better chance of obtaining alternate accommodations as she had more savings and can still live with her parents should she choose to do so. Meanwhile, the father cannot live with his parents without risking his parents’ health. Therefore, after balancing these factors, the Court dismissed the mother’s motion for exclusive possession. As a result, the mother can either live at the matrimonial home, separate and apart from the father, or she can continue living at her parents’, subject to the father’s parenting time with the children at the matrimonial home.

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