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Legal Ease
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Category: Canada Family Law
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If one spouse is successful at aquiring exclusive possession

Customer Question

If one spouse is successful at aquiring exclusive possession of the matrimonial home due to criminal abuse, can the other spouse claim occupational rent?Ontario Family Law.
Submitted: 1 year ago.
Category: Canada Family Law
Expert:  Legal Ease replied 1 year ago.

Whose name is ***** ***** to the home?

Customer: replied 1 year ago.
Both. Joint
Customer: replied 1 year ago.
The problem is that I'm currently residing in a shelter. I left because of my spouse's alcoholism and escalating threats of violence. He has been charged recently and bail conditions imposed.
He threatened to sell the home prior, but now is not motivated to sell.
After I moved out of the matrimonial home, put my furniture into storage, he restricted access to me entering the home, to which I had to contact police twice.
Then he staged the home with various pornography to unsettle me. Recently he was charged with harassing phonecalls after 11 series of voice-mails involving him masturbating to a Porn DVD after being texted to stop.
It doesn't end with this guy.
I have a lawyer. I have a good job, but I am financially strapped because I fear a repeat of having to carry the whole mortgage and house costs any time he so chooses.
Plus he is not keeping the home in good repair or viewing conditions.
Plus how can I even commit to rent or any type of residence when I have court costs, legal fees encroaching my very existence!
I feel more helpless than when I lived under the same roof.
I've been at this shelter since mid November, but time is running out for me.
Expert:  Legal Ease replied 1 year ago.

He will have to pay you occupation rent if he lives in the home and you do not.

So when it comes to the division of assets and the house is being sold what he should be paying for occupation rent will be considered and you will get credit for it.

If you pay all the mortgage payments you will of course get credit for that as well.

Customer: replied 1 year ago.
But what Happens once I am able to live again in the home after getting a court order for exclusive possession and to sell.???
If he has a restraining order due to his criminal behavior can he claim occupational rent???
Expert:  Legal Ease replied 1 year ago.

If you are able to move back into the home then you would have to pay occupation rent.

The issue of occupation rent has nothing to do with this criminal issues.

Customer: replied 1 year ago.
I was just thinking on this....
Since I jointly own our home, and there are no restrictions on me....shouldn't I be able to move back to the house?
His bail condition is the standard one, to stay 100 m away from any place I'm known to be.???
It would be a bold move, but why should I be forced to live like a homeless person in a shelter, when I still own my home? I'm still paying the mortgage on it!
My FL lawyer can still work on the exclusive possession part, but in the meantime I should be able to go back to my place and live somewhat safe.????
This would save me the hassle of getting stuck into extra accommodation expenses at this time. Plus the house needs to be prepared for sale.What are your thoughts?I could ask VWAP to support me in a police transition. Once I'm there back at the house, my spouse shoukd have to leave.You see I have a career to worry about. I'm a 14 year Elementary teacher. I have to work in some stability. My husband is a custodian (different school).I obviously don't want to bait my husband into responding with further violence, but.I should be protected by the bail conditions.If VWAP is aware, police give my husband a courtesy call to let him know I will be returning to the home, then my husband will have to find alternative accommodations. And since he's been the perpetrator all along, this seems more fair.What would you advise for this situation?
If I'm going to have to pay no matter what, then why it be me out of my own home?The bail condition gives me protection for my safety (and if he breaches, then more charges to him). Afterall I'm still paying mortgage, and my spouse would still have to (by law) pay too...Advice.
Expert:  Legal Ease replied 1 year ago.

Yes you do have the right to occupy the home and not simply because your name is ***** ***** though but also because this is a matrimonial home. In the absence of an order to the contrary you both have an equal right to possess the home.

In misty cases like yours, there never is a need for an order for exclusive possession of the home because in cases where there has been an assault the perpetrator of the assault is required to stay away from the victim and that would give the victim the right to occupy the home exclusively without a court order.

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