In a unique recent case, the Ontario Court awarded the husband exclusive possession of the home he had shared with the wife, even though she had concerns about the welfare of the special needs horses that were stabled in a barn on the property.
Insightful Incident
In Taafe v. Taafe, the couple had lived together for 26 years before separating. The wife had left after a culminating incident where she assaulted and threatened the husband and their 18-year old daughter; now with nowhere to live, she went to court with an urgent application asking for exclusive possession of their matrimonial home.
Caretaking of the animals
As the wife explained to the court, she was the sole caregiver of four special needs horses: Timmis (formerly with a police force, now suffering with a badly injured leg), Bill (rescued from a meat yard), Finley (arthritic), and Fancy (a former competition horse, now also arthritic). There was also one donkey, Zeke, who had highly specific dietary needs. Prior to separation, the wife spent 6 hours per day attending to the animals, and was the only one who knew their individual issues and plans of care. She accordingly asked the court for exclusive possession of the matrimonial home and barn, so she could continue in her animal-caretaking role.
Family Law Act
The husband countered by pointing to the Family Law Act (FLA). Its provisions oblige the court to consider a list of recognized criteria when determining who gets exclusive possession – but “caring for animals” was not among them.
The court agreed with the husband. It looked at the FLA factors closely. They included:
- the best interests of any affected children
- existing family property and support orders
- the financial positions of both spouses
- any written agreements between them
- the availability of alternative accommodation, and
- incidents of violence within the family.
Despite the wife’s dedication to the animals, the court found that the husband – who was a police officer with a stable income – was in a better financial position to stay on the property, pay for its maintenance, and also arrange appropriate animal care. The wife on the other hand was currently unemployed, and recovering from breast cancer. The court also factored in the needs of their daughter, who despite having reached the age of majority was still attending school and was still a “child of the marriage”.
Possession of the Matrimonial Home
Since the parties had agreed to immediately list the home for sale, any exclusive possession order would be temporary. The court reached a middle-ground: It allowed the husband to stay in the home until the end of January 2024, at which time possession would pass to the wife until the closing date on any sale. This would give the husband sufficient time to secure alternative accommodation, and would leave the animal care in the husband’s hands only for the short term.
With that said, the court did share the wife’s apprehensions about the animals’ interim well-being. It noted the husband had failed to take certain simple steps, such as getting a report from their existing veterinarian around detailing each animal’s heath concerns. Also of concern was the fact that the husband was working 12-hour shifts, and their daughter was away during the week at school. To address this, the court ordered the husband to arrange and pay for an experienced veterinarian who would inspect the animals, and ensure their proper care during his exclusive possession period.
For the full text of the decision: Taafe v. Taafe, 2023 ONSC 5870 (CanLII)
