Domestic violence is defined as a pattern of behaviour in any relationship that is used to gain or maintain power and control over an intimate partner. This pattern can be physical or non-physical. In Canada in 2023, there were 139,020 victims of family violence and 123,319 victims of intimate partner violence that were reported to the police. This marks a 4% increase from 2022.
Separation is a significant cause of emotional turmoil. Unfortunately, many spouses experience violence in domestic settings at the end of their relationships. On the other hand, spouses who experience violence prior to separation may notice the domestic violence get worse afterwards.
If you feel you are experiencing domestic abuse, it is important to remember you have rights. Even if your abuser has caused you to believe you are powerless. One of the most effective remedies for married individuals experiencing domestic violence is called ‘exclusive possession of the matrimonial home.’
Important reminder: if you feel you are facing immediate violence, contact your local police without delay.
Exclusive Possession of the Matrimonial Home
If you are married, you can apply to the court for exclusive possession of your home until you and your spouse have resolved the issues relating to your separation. This remedy is particularly important in cases involving domestic violence. Then, you have found a new place to live.
A judge will provide an order for exclusive possession based on the following provisions:
- The best interests of the children affected;
- Any existing orders under Part I (family property) and any existing support orders or other enforceable support obligations;
- The financial position of both spouses;
- Any written agreement between the parties;
- The availability of other suitable and affordable accommodation; and
- Any violence, including domestic violence, committed by a spouse against the other spouse or the children.
This list only includes violence that has already been committed in the past by your spouse. However, the courts will take into consideration whether there has been any psychological distress your partner has caused. In other words, violence does not necessarily have to be physical.
If a judge grants an order for exclusive possession of the matrimonial home, your spouse will not be allowed into the home. If your spouse does come into the home, they can be fined or put into prison, or both.
It is important to note that the test for exclusive possession is a high bar. In other words, getting an order for exclusive possession can be difficult. This is because most conduct does not amount to one party retaining exclusive possession of the home. In the case E.S. v. A.S., 2020 ONSC 824, the court says:
The presence of tension in the matrimonial home was more recently addressed in Hollinger v. Wang, 2019 ONSC 4807 (Ont. S.C.J.), where Charney J. observed, at para. 29:
Unpleasantness, inconvenience and even some tension are expected, perhaps inevitable, consequences of living separate and apart under one roof. But s. 24(3) does not include any of these considerations as stand-alone factors.
In Menchella v Menchella, 2012 ONSC 1861 (Ont. S.C.J.), McGee J. provides a helpful overview of the legislative intention behind the exclusive possession provisions. These are of the Family Law Act and give a context to the behaviour that is to be assessed:
Exclusive Possession Orders: Balancing Stability and Safety in Matrimonial Homes
An order for exclusive possession is dramatic in effect, and highly prejudicial to the dispossessed spouse. 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.
The legislature clearly intended spouses and their children to be able to maintain the shelter and consistency afforded by a matrimonial home while the issues arising from a marriage breakdown are determined. Section 24(4) speaks directly to maintaining a stable residence for children whose parents have separated. The statutory exception to continued possession of a home arises primarily in circumstances in which continued joint occupation is a potential or real threat to the safety or wellbeing of a child or a spouse. Particularly if domestic violence is involved.
In other words, an order for exclusive possession will not be ordered simply because there is unpleasantness, inconvenience, or tension. There must be a potential or real threat to the safety of a child or spouse.
One example of a potential or real threat to children is when a stressful environment created by the parents becomes too much for the children to handle. At that point, it is likely the non-primary care parent will have to leave the residence. See below from the case Mabed v Alshawaf, 2020 ONSC 8071:
In this case, I am able to find as a fact that there is conflict in the matrimonial home to such an extent that the well-being of the children is at risk. The evidence is uncontroverted that the children are adversely affected by the parents’ domestic violence and conflict. The police were called to their home on more than one occasion. The mother left the home on more than one occasion with the children to separate the parents and remove the children from further exposure to conflict. The situation in this home goes beyond unpleasantness, inconvenience, and some tension.
What If One Spouse Violates the Order for Exclusive Possession?
If a judge has ordered exclusive possession of the matrimonial home, and the other spouse violates that order, this constitutes a very serious offence. According to section 24(5) & (6) of the Family Law Act:
(5) A person who contravenes an order for exclusive possession is guilty of an offence and upon conviction is liable,
(a) in the case of a first offence, to a fine of not more than $5,000 or to imprisonment for a term of not more than three months, or to both; and
(b) in the case of a second or subsequent offence, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both.
(6) A police officer may arrest without a warrant a person the police officer believes on reasonable and probably grounds to have contravened an order for exclusive possession.
Conclusion
There is almost nothing more important than protecting yourself and your loved ones from violence in a domestic setting. But while exclusive possession of the matrimonial home offers protection from harm, it is a complicated process. Receiving an order for exclusive possession is difficult to achieve. If you feel this may be the right choice for you, do not hesitate to contact the team at Progressive Legal Solutions. Our lawyers have years of experience in dealing with family law issues of every kind and are ready to fight for your interests.
Written by Keanin Parish