What is the test for exclusive possession of the marital home?

New Brunswick, Canada


The following excerpt is from J.M. v. L.M., 2013 NBQB 157 (CanLII):

More is needed to satisfy the ground resting on the “best interests of the child” for a court to exercise its discretion to award, for any period, exclusive possession of the marital home: … Simply to state that exclusive possession is to be granted whenever “it is in the best interests of a child to do so” is to defeat the purpose of the Act. It is only in very unusual circumstances that it would not be in the best interests of a child to continue residing in the marital home upon his parent’s separation. Over the years psychiatric studies have clearly demonstrated that children need a great deal of stability during their formative years and one of the stabilizing influences has been recognized as the maintenance of a home in which the child has been able to invest, in terms of emotional and historical ties, I am satisfied, however, that s. 45 (3) contemplates more than this simplistic “best interest” concept. “Best interest” in this context cannot be equated simply with what may be better for any given child. Parents on a day to day basis must make decisions which have some impact on their children and these decisions, if made for legitimate reasons, cannot be criticized simply because the children might have fared better if the decision had not been made … (Caines v. Caines, supra at para. 23)

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