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AXCLUSIVE POSSESSION OF A MATRIMONIAL HOME OUTSIDE OF ONTARIO

Sept 5 2014

Potter v Boston, 2014 ONSC 2361, 239 ACWS (3d) 286

This case addresses the issue of the matrimonial home and whether exclusive possession of the home if situated outside of Ontario can be granted under section 24 of the Family Law Act.

Background

The parties in this matter were married in 1982 and separated 26 or 28.5 years later.  There was one child of the marriage, namely Lexi.  The parties purchased a condominium in Florida and title to the property was registered in the husband’s name alone.  The parties’ primary residence was in Stoufville, Ontario, which the wife claimed was the matrimonial home.  The legal questions that arose in this matter was whether the condominium could also be deemed to be the matrimonial home pursuant to section 24 of the Family Law Act and whether exclusive possession under said section could be awarded in respect of a property that was situated outside of Ontario.

Analysis

Issue #1: The Matrimonial Home
Pursuant to section 18(1) of the Family Law Act, “a matrimonial home can only be one which was, at the time of separation, ordinarily occupied by the spouses as their family residence” (paragraph 13).  As found in Taylor v Taylor (1978), 6 RFL (2d) 341, the term “family residence” refers to something more “than the simple occupation of a dwelling” (paragraph 13).  As such, Justice Healy held the condominium most likely could not be considered a matrimonial but remained “open for debate and future determination” (Paragraph 13).

Issue #2: Exclusive Possession of a Matrimonial Home Situated Outside of Ontario
Despite the above, the power of the court to grant exclusive possession of the matrimonial home under section 24(1) of the Family Law Act is restricted to such homes that are situated within Ontario.  Section 28(1) of the Family Law Act provides that “This Part applies to matrimonial homes that are situated in Ontario”.  It follows that properties located outside of Ontario “can never be a matrimonial home as defined in the Act” (paragraph 15).
Thus, Justice Healy found that the Motion Judge made an error of law.  Further, Justice Healy held that the condominium could not be considered the matrimonial home as it was situated outside of Ontario, and, thus, could not be subject to an order for exclusive possession.  The Court further held that the only way in which a court may have the right to make such an Order by different means would be in exercise of in personam jurisdiction and prior to a Court exercising such discretion four criteria must be satisfied.  The Court in this case had no evidence before them to canvass such an issue and stayed the order.


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