• by Roxanna Cian
Originally published in the OFLM 2024-12 edition
Overview
Do criminal charges always weigh heavily against a family law litigant seeking exclusive possession of the matrimonial home? In Rana v. Rana (2024 ONSC 5580), Justice LeMay did not seem to think so.
While a criminal charge in the context of family violence is consequential, Rana illustrates that it is not always the final nail in the coffin when a court determines who gets exclusive possession of the matrimonial home.
The facts
In the case of Rana v. Rana (2024 ONSC 5580), Justice LeMay dealt with a motion brought by the Respondent Mother for, among other claims, an order granting exclusive possession of the matrimonial home.
The couple married in India in February of 2021, moved to Canada in 2022, had one child, and separated by June of 2023.
Shortly following their separation, the Applicant Father was criminally charged with several domestic violence offences.
After being charged, the father was prohibited from entering the matrimonial home, where the mother and young child continued to live. As a result, the mother effectively gained exclusive possession of the home.
Notably, the father held sole title to the property and continued paying the carrying costs of the home following separation.
The law, generally
Subsection 24(3) of the Family Law Act sets out specific criteria that a court must consider when determining exclusive possession of the matrimonial home:
24(3) In determining whether to make an order for exclusive possession, the court shall consider,
(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children (emphasis added)
In the context of criminal charges, ss. 24(3)(f) emerges as a specifically relevant provision. As noted by Justice Kurz in Robinson v. Robinson (2020 ONSC 7533),
Domestic violence, for the purposes of s. 24(3)(f) is broadly understood to include verbal abuse, threats, and intimidation and is a relevant factor in the determination of exclusive possession (Menchella v. Menchella, 2012 ONSC 6304 (Ont. S.C.J.) at para. 27). (at para. 82)
Any allegations of violence by one spouse against the other will have to be considered by a judge in determining exclusive possession. Presumably, evidence of a formal criminal charge substantiating the allegation could heavily affect the consideration of ss. 24(3)(f).
However, among the factors of ss. 24(3), the best interests of the child remain the paramount consideration (Robinson, at para. 83).
It is crucial to recognize, as Justice McGee highlights in Menchella v. Menchella (2012 ONSC 1861), that an order for exclusive possession has a highly prejudicial effect on the dispossessed spouse. Accordingly, Justice McGee states that “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” (Menchella, at para. 15).
The father’s position
In defending his position, the father referred to Harper v. Harper (2010 ONSC 4845). In Harper, Justice Spies was confronted with a similarly short marriage that included allegations of domestic violence and where the matrimonial home was solely owned by the father.
In that decision, Justice Spies observed,
This case strikes me as one where the Applicant is trying to use her de facto possession of the matrimonial home for leverage against the Respondent. In my view, provided the court ensures that the Respondent does not delay in bringing this matter to trial, she should not be permitted to do so. (at para. 30) (emphasis added)
Spies J. further noted that given the short marriage, the father’s pre-marital ownership of the home, and the mother’s lack of financial contribution, the father had a strong claim for unequal division of the matrimonial home (Hunter, at para. 30).
The mother’s position
In justifying her position, the mother relied on Reshetnikova v. Reshetnikova (2023 ONSC 7988). In that case, the husband was also prohibited from returning to the matrimonial home as a result of assault charges. The husband’s mother sought to set aside the order of exclusive possession granted to the wife. Justice Kraft in Reshetnikova upheld exclusive possession for the wife and focused on the best interests of the children in coming to that conclusion (at para. 49).
Justice LeMay’s findings
Justice LeMay granted the father exclusive possession in the matrimonial home. The basis for his decision included (a) the fact that the father was solely on title, (b) the mother had not paid any of the home expenses for more than a year, and (c) the difficulty to see how the father would be forced to sell the home at trial due to his pre-existing equity in the home. (at paras. 53 – 54)
LeMay J. further considered the fact that the equalization payment would likely not be large coming out of such a short marriage. Since a claim for occupation rent would likely exceed an equalization payment, this further supported granting the father exclusive possession (at para. 56).
Furthermore, Justice LeMay emphasized the financial burden on the father in him carrying all property-related costs, while also paying rent elsewhere. There was also photographic evidence suggesting that the mother was not properly maintaining the home while residing there alone (at paras. 55 & 57).
In addressing subsection 24(3)(f) of the FLA, Justice LeMay gave little weight to the criminal charges and allegations of domestic violence. As the charges were withdrawn and there was no finding of guilt, the court was not convinced that this factor outweighed the other factors outlined in section 24 that otherwise favoured exclusive possession for the father. (at para. 60)
In the end, Justice LeMay found that the balance of convenience favoured the father’s claim to exclusive possession of the matrimonial home (at para. 61).
Conclusion
Indeed, subsection 24(3) of the FLA invites domestic violence-related criminal charges to be weighed in any assessment of exclusive possession. However, Rana v. Rana demonstrates that such charges are not necessarily enough to outweigh other compelling factors that substantively favour granting the accused party exclusive control over the property.
Particularly where the marriage is short and the property was owned by the accused party prior to marriage, a court’s assessment of the balance of convenience may lean more towards the party who brought the home into the marriage and continues to support it.