When the husband and wife married, they moved into a heavily-mortgaged home that had been purchased with funds provided entirely by the wife. They signed a pre-nuptial agreement providing that if they separated, the wife would be repaid those funds from the sale of the home prior to any equalization.
When the parties did split three years later, the wife stayed in the matrimonial home while the husband, who was a self-employed contractor, moved into a 20-foot trailer home equipped with kitchen, bathroom and sleeping quarters. However, the split was very acrimonious.
The wife brought an urgent ex parte motion – i.e. without notice to the husband, who was on holiday out of the country – asking that she be given exclusive possession of the home. She also asked for a restraining order. As the court explained:
The [wife] brings this motion in this way because she is fearful about the [husband’s] reaction to her decision to end their relationship. While I am careful not to make definitive findings of fact given the ex parte nature of this proceeding, I note the [wife’s] affidavit evidence to the effect that the [husband] is a volatile and violent alcoholic. As she tells it, he has been intimidating and verbally abusive toward her for years. In the past year, he has been physically assaultive by pushing her and has even gone so far as to place his hands around her neck as if to threaten to choke her, removing them only when the children pulled him away. As recently as February or March 2014, the [wife] indicates that as the relationship deteriorated, the [husband] threatened to burn the matrimonial home down if he could not live in it. She says he even brought a can of gasoline inside to show that he means business. In sum, the [wife] describes a pattern of behaviour on the part of the [husband] that has been escalating in its abusiveness in the form of real and threatened violence.
The court added:
Indeed, it is partly because of the [husband’s] complete lack of financial stake in the property that the [wife] fears he will come through on his promise to burn the house down.
Since the husband was unaware of the motion and was not in attendance, the court pointed out that “as a simple matter of fundamental justice” it could not draw definitive conclusions after hearing only the wife’s side of the story. But that did not mean it should ignore her evidence altogether. As the court put it:
My objective is to put in place a structure to keep the peace while at the same time respecting the [husband’s] right to meaningfully participate in any proceeding infringing upon his interests. In my view, reducing the risk of violence or allegations of violence in this household is in the best interests of all involved and is a goal that is called for given the evidence and which outweighs the [husband’s] property rights in the short-term.
Even though the husband was not present, the court granted the order for exclusive possession until trial, as well as the restraining order, but ordered the matter be returned to court in 10 days to give the husband a chance to be heard. Although under Ontario family law both spouses had an equal right to possession of the matrimonial home, there are acknowledged exceptions; given the potential for violence and the fact the husband had other accommodation, this case was one of them.
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