Consequences of Failing to Abide with Social Distancing during COVID-19: Exclusive Possession of the Home

By Merovitz Potechin on Friday April 24, 2020.

As a result of the COVID-19 outbreak, a recent court decision made it clear that science does count in Ontario. There were significant consequences, when a property owner who occupied a residence was not abiding with social/physical distancing with respect to an elderly co-owner.

In Zychla v. Zychla, 2020 ONSC 2484, the Ontario Superior Court of Justice recently examined an application for exclusive possession of the family home, co-owned between three people, where one of the owners was not abiding with social/physical distancing. Two of the owners of the Property were spouses who were undergoing separation negotiations, and the third owner was the elderly Mother of one of the spouses.

The non-spouse property owner in this case, was 71 years old, and was at a heightened risk of contracting COVID-19. Despite her vulnerability, one of the co-owners of the property refused to participate in Public Health’s recommendations for social/physical distancing. The Mother asked the offending spouse to account for his whereabouts during the pandemic and he was not responsive. As a result of his failure to comply with social/physical distancing and other factors relating to his aggressive behaviour, the Mother and her daughter were forced to enter into a women’s shelter amidst the pandemic and suffer further potential exposure to the COVID-19 virus.

The court determined that as a co-owner of the property, the Mother had a prima facie right to possession and she maintained that her right to possession was being limited by the offending spouse, who was not behaving in accordance with social/physical distancing within the context of the current pandemic. The Mother no longer felt safe in her own home and this caused her to enter a women’s shelter. The court found that the fact that she was willing to expose herself to the risks associated with living in a women’s shelter during the pandemic rather than continue living at the property was evidence of her genuine fear for her physical, emotional and mental health.

The Mother demonstrated that she had no alternative living arrangements available to her. She also presented evidence that she would allow her daughter, who was compliant with social distancing protocols to continue living with her at the property, whereas the offending spouse had alternative living arrangements available to him.

The Mother was successful in bringing her motion for exclusive possession of the property and the offending spouse who was failing to abide with social/physical distancing protocols was forced to vacate the property. This order was made even though he was a co-owner. Further it was determined that the offending spouse and the daughter could not rely on their rights to exclusive possession under the Family Law Act.

If you have questions about Public Health recommendations for social and physical distancing and want to know how to keep yourself and your loved ones safe during these trying times, we recommend that you check in regularly with your local municipality’s notices and updates on recommended protocols.

Stay safe.