In this case the mother, aged 50, and father, aged 52, had been together for 15 years, and married for 13 of them. The father was a successful realtor and the mother never worked during the marriage; she stayed home to be the primary caregiver for the 12-year old daughter they had together.
They separated in 2011 when the daughter, in the course of using the home computer, discovered that the father was involved in an ongoing extra-marital affair with a woman who lived in Sweden. Over the mother’s protestations – and despite several lengthy trips to Sweden – the father had continued to live in the matrimonial home post-separation, ostensibly as a means to maintain a relationship with the daughter. About this situation, the court wrote:
The mother wants the father out yesterday. She states that his continued occupation of the home is intolerable.
The interesting twist was that the matrimonial home was a 6,000-square foot, custom-built residence owned solely by the mother. It has been purchased with funds from her extended family, and had a fair market value of over $3 million. By virtue of a marriage contract, the home was specifically excluded from the couple’s assets that were subject to division upon separation.
Under the Family Law Act, however, upon separation both spouses had a right to equal possession of the home; a court could nonetheless order that exclusive possession be given to one of the parties pending trial where (among other factors) the best interests of the daughter dictated it. The mother accordingly applied for exclusive possession, with an order that the father vacate within 15 days.
The father resisted; he proposed instead to live “quietly and discreetly” within 500 square feet of the 6,000-square foot premises, claiming that he had nowhere else to live and no savings or assets with which to arrange for new living accommodation.
As a first step to resolving the dispute, the court had no difficulty concluding that the daughter and mother should continue to live in the matrimonial home; the next question was whether the father should be ordered excluded from it entirely.
The court considered the test for whether the daughter’s best interests would be served by allowing the father to remain. Of particular relevance was the fact that the existing situation might give rise to conflict and stress in the home that adversely affected her.
On this point, the mother produced evidence that the daughter had suffered an anxiety attack on the same day that the father was leaving for Sweden to spend the entire Christmas period with his new partner. While noting that “the father’s decision calls his parenting priorities into question,” the incident did not amount to sufficient evidence on which to conclude that her parents’ continued joint cohabitation in the home was adversely affecting the daughter. Nor was the court provided with independent evidence of the daughter’s views and preferences on this point, one way or the other.
Therefore – and despite voicing its concerns that the daughter had become caught in-between her parents’ struggle — the court declined to make an order for exclusive possession in favour of the mother. (Of its own volition the court did, however, order the assistance of the Children’s Lawyer to provide the daughter with counsel).
For the full text of the decision, see:
Menchella v. Menchella, 2012 ONSC 1861 http://canlii.ca/t/fqpzv
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