Exclusive possession, a complex aspect of family law, often comes into play during divorce proceedings. This order can cause significant upheaval as it might require a spouse to vacate their house and find new living arrangements. However, the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), outlines specific criteria to be considered before such a determination is made.
The FLA lays down six key factors that a court must contemplate when deciding on exclusive possession. These include the best interests of the children affected, existing orders under Part I (Family Property), both spouses' financial positions, any written agreement between the parties, availability of other suitable and affordable accommodation, and any violence committed by a spouse against the other spouse or the children. This violence is not restricted to physical harm; emotional and psychological abuse also fall under this category.
When the best interests of a child are being determined, the court takes into account the possible disruptive effects of a move on the child and the child's views and preferences. In most cases, if children are involved, the custody, and consequently the exclusive possession, is granted to the parent who can maintain the status quo, helping the children adjust to their new family situation in a familiar place.
Exclusive possession in family law is a sensitive issue, affecting the lives of everyone involved, especially children. It is, therefore, crucial to understand the criteria that the court looks at before making this determination. It is not a decision made lightly, and the primary consideration is always the welfare and best interests of the children involved. The Leckman v. Ortaaslan case serves as a stark reminder of the potential outcomes and the severity of the situations that may lead to such a decision.
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