Pursuant to section 24 of the Family Law Act, the court may on application grant one spouse exclusive possession of the matrimonial home, regardless of ownership.
In determining to make the order, the court shall consider several factors. The most common are:
- The best interest of the children. In Pifer v Pifer, [1986] O.J. NO. 170, the wife was granted exclusive possession of the matrimonial home because the husband drank heavily, left live cigarettes in ashtrays and propane heater on after he had gone to bed. Additionally, the parties’ arguing and the strain in the household was negatively affecting the children.
- In determining the best of the children, the court shall consider:
- The possible disruptive effects on the child of a move to other accommodation. In Ward v. Ward, [1990], O.J. No. 3094, exclusive possession was granted to the Applicant until the child completed grade 8; and
- The child’s views and preferences.
- The financial positions of both parties. In Young v Hansen, [2003] O.J. No. 5061, the husband’s request for exclusive possession of the matrimonial home was denied where the wife was paying rent and the husband was residing in the matrimonial home because the court took into account several factors including; there were no children, no existing property or support order and both spouses had retired and living off investment. There was also no evidence that the husband could not afford alternate accommodation.
