COVID-19 may be playing havoc with the court system, but it has not changed the burden of proof in disputes over exclusive possession of the matrimonial home, says Toronto family lawyer Michael Stangarone.

In the recent case of C. v. C., a mother of two children applied for exclusive possession of the home she once shared with her husband, arguing that it was not safe for her to live at her elderly parents’ house during the current pandemic.

But Ontario Superior Court Justice Robert Charney dismissed her motion, finding that she had failed to show that continued co-habitation in the matrimonial home was either impractical or that it would threaten the children’s well being.

In fact, after reviewing the evidence, the judge concluded that the mother was “better able to reside elsewhere” than the father during the pandemic, due to his parents’ ill health and advanced age.

Exclusive Possession during COVID-19

“The onus is on the party seeking exclusive possession, and this case is important for setting out the type of evidence that you need to prove your case,” says Stangarone, a partner with MacDonald & Partners LLP, who acted for the successful father. “You have to lead credible evidence that alternate living arrangements increase the risk of COVID-19, whether it’s because someone is failing to comply with government protocols, or there’s a family member with a health issue that makes them vulnerable.”

The parties separated in 2019 after 7 years of marriage, but lived together in the matrimonial home for a period post-separation. However, when the father refused the mother’s request that he depart, she moved with the children to her own parents’ home, leaving her husband alone in the matrimonial home.

In addition to an order for exclusive possession of the matrimonial home, the mother’s motion also asked the judge to grant her exclusive care of the children at the home for 14 days.

Following that initial period, her motion requested a temporary order that would impose a nesting arrangement, committing each parent to leave the matrimonial home – residing instead with their respective parents – during the other’s parenting time. Under the mother’s suggested arrangement, the father’s parenting time would consist of a 29-hour period in the middle of each week, plus alternate weekends.

Courthouse Suspension of Operations

A case conference was originally set for March 17, but did not occur as planned, since that date turned out to be the very first day of the court’s suspension of operations. However, the motion was heard in writing after the judge found it met the threshold for urgency.

According to Justice Charney’s ruling, the mother claimed the high level of conflict between the parties made continued co-habitation impossible. In addition, she argued that it was unsafe for her and the children to live with her parents during the pandemic because they are both over 55 years. In particular, her father had started experiencing “respiratory issues,” the mother claimed in an affidavit that also accused her husband of flouting COVID-19 protocols. 

But the judge took issue with the mother’s evidence, noting that her affidavits contained “hearsay and speculation” about the father’s behaviour, while embellishing the risks posed by the current pandemic to her own parents and minimizing those to her husband’s parents.

The judge rejected her request to deny the father access to the children for 14 days, concluding that she had provided “no admissible evidence” to support her claims about his alleged COVID-19 protocol violations.

Unsuitable Nesting Arrangement

Justice Charney wrote that the current pandemic rendered a nesting arrangement unsuitable because of the father’s inability to live with his parents.

“Balancing the suitable alternate accommodations available to each party, the evidence is clear that, at least during the COVID-19 pandemic, [the mother] is better able to reside elsewhere than [the father],” the judge added, dismissing her motion for exclusive possession of the matrimonial home.

 “It was for the mother to prove her case, but the judge found she had better alternate accommodations,” Stangarone says.

He says the decision is also important for emphasizing the importance of parenting time during the pandemic emergency.

“The question of parenting time, although important, is not, at this point, urgent. This is not, however, an invitation to deny or suspend [the father’s] parenting time with the children. Continued parenting time with both parents is in the children’s best interest,” Justice Charney wrote, requiring both parents to submit “very specific and realistic time-sharing proposals” accounting for all COVID-19 considerations, and guided by the maximum contact principle.



“Parents should be aware that their conduct will be critically scrutinized by the court,” the judge added.