Family Law Act

Question 1

Matrimonial Home

Answer 1

• residence where the spouses lived together prior to separation
• legally married not common law
• excludes property used for purposes other than residential

Question 2

Common Law

Answer 2

• entitled to what they brought into the relationship
• have to go to court to establish rights to property

Question 3

Order for Exclusive Possession

Answer 3

Regardless of ownership, court may on application order:
- Order preservation of matrimonial home
- Direct that one spouse be given exclusive possession
- Direct payments by spouses
- Direct contents to remain or be removed
- Authorized disposition/encumbrance of interest
Issued under Family Court, regardless of ownership and despite right of possession:
- One spouse is given exclusive possession
- Full enjoyment
- Sometimes interim/temporary order
Only to legally married spouses

Question 4

Criteria for Exclusive Possession

Answer 4

Court shall consider:
- the best interests of the children affected;
- any existing orders under Part I (Family Property) and any existing support orders;
- the financial position of both spouses;
- any written agreement between the parties;
- the availability of other suitable and affordable accommodation; and
- any violence committed by a spouse against the other spouse or the children

Question 5

Temporary Order of Exclusive Possession

Answer 5

Court Wil Consider:
- best interests of any children, least disruptive, e.g. not having to change schools/sitter/after school activities, etc.
- primary caregiver
- existing orders
- prenuptial agreement
- financial ability of spouses
- history/violence

Question 6

Arrest W/O Warrant

Answer 6

Police Officer on RPG may arrest without warrant:
- person contravened order for exclusive possession
- find committing not required
- Part III

Question 7

Penalties - Contravene Order for Possession

Answer 7

Part III summons
- $5000 and/or 3 months (1st offence)
- $10,000 and/or 2 years (subsequent offence)

Question 8

Restraining Order (persons)

Answer 8

• by interim or final order
• Restraining the applicant’s spouse, former spouse OR person who is living with or has lived with applicant
• Applicant has RGs to fear for their safety or safety of child in their custody
• Person contravening thereby disobeys court order (s. 127 C.C)
  **Note: Molesting, communicating, annoy or harass

Question 9

Arrest W/O Warrant - Restraining Order

Answer 9

• Police officer may arrest w/o warrant a person he believes on RPG to have contravened a restraining order

Question 10

Disobeying Order of Court (dual procedure)

Answer 10

• Everyone who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money
  CRIMINAL OFFENCE TO BREACH RESTRAINING ORDER