SUPERIOR COURT OF JUSTICE - ONTARIO
Court File and Parties
COURT FILE NO.: FS-21-00026026-000
DATE: 20 260212
RE: ANDRE GUIDO PAGLIARO, App licant
AND:
ALESSANDRA ARCIERO, Respondent
BEFORE: The Honourable Mr. Justice M.D. Faieta
COUNSEL: Nima Amiri, for the Applicant
Jessica Brant , for the Respondent
HEARD: February 3, 2026
ENDORSEMENT
1The respondent mother brings this motion for an order for interim exclusive possession of the matrimonial home pending the 12-day trial which is to commence on January 18, 2027.
ANALYSIS
2Subsection 19(1) of the Family Law Act , R.S.O. 1990, c. F.3 (“FLA”) states that both spouses have an equal right to possession of a matrimonial home.
3However, under s. 24 of the FLA , a court may grant one spouse exclusive possession of the matrimonial home or part of it for the period that the court directs. Subsections 24(1)-(4) state:
24 (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order, …
(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part; …
(2) The court may, on motion, make a temporary or interim order under clause (1) (a), (b), (c), (d) or (e).
(3) In determining whether to make an order for exclusive possession, the court shall consider,
(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children.
(4) In determining the best interests of a child, the court shall consider,
(a) the possible disruptive effects on the child of a move to other accommodation; and
(b) the child’s views and preferences, if they can reasonably be ascertained.
4The following principles have emerged from the application of the above statutory provisions:
(a) An order for exclusive possession is highly prejudicial to the dispossessed spouse and should not be ma de on a motion where there is conflicting evidence that requires findings of credibility: Menchella v. Menchella , 2012 ONSC 1861 , at para. 15 ; Trotta v. Chung , 2022 ONSC 6465 , at para. 31 .
(b) The balance of convenience, taking into account the factors set out in s. 24(3) of the FLA , must favour the party seeking exclusive possession. Continued shared use of the matrimonial home must be impractical and not just unpleasant or inconvenient : Hollinger v. Wang , 2019 ONSC 4807 , at para. 28 ; Aston v. Matwee , 2015 ONSC 8087 , 71 R.F.L. (7th) 318 , at para. 35 .
(c) A spouse will be denied continued possession of a matrimonial home when continued joint occupation is a potential or real threat to the safety or wellbeing of a child or a spouse: Menchella , at para. 16 .
(d) The best interests of the child are paramount in determining an order for exclusive possession. As noted by Jarvis, J. in Naccarato v. Naccarato , 2017 ONSC 6641 , 6 R.F.L. (8th) 229 , at para. 5 :
It is axiomatic that any order for possession of the matrimonial home should focus on the children’s well-being and stability and remove them as much as possible from their parents’ conflict. Perpetuating a conflict-filled environment cannot be best for children.
(e) A primary care parent is typically granted exclusive possession where: (a) there is conflict in the home that is adversely affecting a child; (b) the stress in the home has become unbearable and leaving the home would be disruptive to a child; (c) it is not in the child’s best interests for the parents to continue to live in the same home; and (d) an order for exclusive possession is otherwise justified: Menchella , at para. 17 .
Background
5The parties were married in 2000 and separated on December 25, 2019. They have two daughters. VP, age 18, attends university in southwestern Ontario and resides on campus. CP, age 15, is in Grade 10. A trial is scheduled to commence in this case on January 7, 2027.
6The respondent mother states that she has resided with their daughters in the matrimonial home located in Toronto since the date of separation. She also states that the applicant father resides at an undisclosed location. She states that the applicant father only attends the matrimonial home unannounced at odd days and times. Some days he comes for an hour and then leaves. There are also times when he has not been seen for more than one month.
7On the other hand, the applicant father states that he has resided in the matrimonial home on a full-time basis since the date of separation. He states:
Alessandra and I reside in the home together with [CP]. As set out above, [VP] resides on campus at [a university in southwest Ontario]. When [VP] returns to Toronto, she spends the majority of her time with her long-term boyfriend. [CP] is fifteen years old, and she has begun to have her own life and routine separate from Alessandra and me. Until very recently [CP] had a part-time job, she has her own Etsy business selling cosmetic products, and beyond work, she spends a lot of time with her friends, tests the limits of her curfew like a normal teenage, and purchases many meals outside the home with her friends. [CP] has also expressed her desire to change her school, and she has done significant research about alternative schools, travel time, academic standards, and her future career path. I expect that she will transfer schools for the 2026-2027 academic school year, and I support her plans.
8The applicant father states that he and the respondent largely avoid one another in the home, and their personal routines are conducive to this arrangement. The applicant states that he leaves his bedroom every morning around 7:15 a.m. and makes coffee. He then begins working in his home office located on the third floor at 8:00 a.m. He works until noon, prepares a lunch, and then returns to work until 4:00 p.m. when he leaves for the gym. He returns home around 7:00 p.m. and prepares dinner. He states that the respondent prepares dinner and eats dinner at about 6:00 p.m. The applicant states that he goes to bed around 11:30 p.m.
9In reply, the respondent mother denies that the applicant resides in the home on a full-time basis. She states that the applicant has not slept at the home on January 14, 2026, January 17-21, 2026, January 23, 2026, and January 27-30, 2026. She states that the applicant primarily uses the home as a part-time office and storage space. The respondent mother also denies that the children primarily reside outside the matrimonial home however, that was not the applicant’s evidence. She states that VP attends the home whenever she is able and that CP primarily resides at the home. The respondent mother also states that their personal routines are not conducive to a shared use of the matrimonial home as:
… he causes ongoing distress to both me and the children. It is not comfortable with him showing up after being gone for two weeks, sometimes coming in late at night. Sometimes he will go in the living room and have the telephone volume so high that no one can sleep, or he wakes everyone up. He does not contribute to groceries but helps himself to everything in the home when he is there. He has even eaten the children’s lunch food. He just does not care.
10The applicant father states that both parties have repartnered and that he exclusively spends time with his partner outside of the matrimonial home. In contrast, he states that the respondent mother regularly invites her partner to stay overnight which he thinks is inappropriate and does not think that his daughter CP should be exposed to. The applicant states that his counsel sent a letter to the respondent mother in February 2025 and suggested that both parties refrain from bringing their partners into the matrimonial home. In reply, the respondent mother does not dispute the above evidence and states that her partner does not reside in the home and that her partner has been respectful and supportive of the children.
11The applicant father states that the respondent mother scheduled a motion for exclusive possession on June 13, 2023 on the same grounds that she advances now but that motion was adjourned on consent and never rescheduled.
Existing Orders
12On September 7, 2022, following a case conference, Justice Sharma ordered:
Neither party shall make negative or disparaging remarks about the other party to the children, or within earshot of the children.
Neither party shall discuss this litigation with the children, except to explain that their views will be sought by an independent clinician so that the Court can be made aware of the children’s views. The parties shall not attempt to influence the children in any views they express to a clinician preparing a VOC report.
The Office of the Children’s Lawyer (OCL) is requested to prepare a Voice of the Child (VOC) Report to obtain the children’s views and preferences with respect to the parenting time the parties shall have with the children. …
13Neither party refers to a Voice of the Child report in their motion materials nor is there is any evidence that it was prepared.
Financial Position of Both Spouses
14The respondent mother earns about $91,000 CDN as an administrative assistant. The applicant father earns a base salary of $91,250 USD with a technology consulting company based in Florida.
15The applicant does not dispute that he has over $4 million at his disposal according to his Financial Statement, nor that he does not pay child support or spousal support. There is also no dispute that the applicant paid their mortgage (about $7,000 per month) for the first 21 months following the date of separation and that the respondent’s father has paid one-half of the mortgage commencing in late 2021. From January 2020 to April 2025, the respondent paid for water, hydro, gas, and property taxes. The respondent stopped paying property tax in April 2025 and the applicant has paid the property tax since that time.
16The respondent does not dispute that the applicant incurs $5,000 per month in matrimonial home related expenses nor does she dispute that the applicant provides more for CP than the respondent.
17The respondent mother states that since separation, she has been in financial need and has been living pay cheque to pay cheque. She further states that the applicant has not made any payment towards child support or spousal support and that he only started paying property tax in 2025. The applicant father states that it is inconceivable that the respondent is living paycheque to paycheque. It is not disputed that the respondent has not filed an updated Form 13.1 Financial Statement since August 31, 2022, nor did she file an updated Financial Statement prior to the Trial Management Conference held on January 12, 2026, as required by the Family Law Rules. In the intervening years, the respondent has sworn affidavits which state that there have been no significant changes to her last Financial Statement which showed that she had one credit card with no balance.
Any Written Agreement Between the Parties
18There is no evidence of a written agreement between the parties.
Availability of Other Suitable and Affordable Accommodation
19The respondent mother states that she does not have the financial ability to move out of the matrimonial home.
20The applicant father states that he enjoys the matrimonial home and is active in the community. He has no desire to vacate the matrimonial home nor to move to the cottage in the State of New York which is used for investment purposes.
21The parties agree that the matrimonial home should be listed for sale as they cannot agree on a price to buy the other’s interest. The respondent mother states that the applicant father has decreased the value of the home by starting renovation projects and not finishing them. The respondent states that if she were to obtain exclusive possession, then she would be able to complete the necessary repairs to put the home for sale at maximum value.
Any Violence Committed by a Spouse Against the Other Spouse or the Children
22“Violence” under s. 24(3) is not limited to physical abuse. It includes psychological assault, through communication or other conduct, which impinges on mental health and renders continued sharing of the matrimonial dwelling impractical : Hill v. Hill , [1987] 10 R.F.L. (3d) 225 , at pp. 230-31 .
23The respondent mother states:
The applicant has been making me and children’s lives unbearable, so much so that the children have voiced their concerns to both parties. As mentioned, the applicant comes and goes in and out of the home at random days and times without notice that he is coming. This is causing the children and I a lot of anxiety.
Examples of the applicant’s behaviour while in the home include:
a. Body shaming the children and myself, calling me fat and lazy.
b. Threatening to remove money from the children’s bank accounts if they do not do what he says.
c. Physically assaults the children by hitting and pushing them and getting within inches from their faces during arguments.
d. Verbally assaults the children by calling them names and putting them down attacking their appearance and life choices.
e. Threatens to hit me in from of the children and often lunges at me causing me to step back in fear and laughs about it.
f. Tells me that I will “regret it” during arguments.
g. Throws water at my face, as I have stood u to him.
h. Forced our eldest child to listen to his [recorded] telephone conversation with Child Protective Services days after this Honourable Court made an order to not talk disparagingly towards me and laughs while talking badly about me.
i. Advised the children that the therapist was in “cahoots” with me to “make him look bad” while [VP] was in therapy for 5 years to recover from what has taken place in the marriage.
j. Told our eldest child that mental health is “made up” and “people in his family are strong and do not need this stuff”.
k. Shamed our daughter for taking melatonin for sleep and claimed it “would make her a drug addict” despite this recommendation from her doctor.
l. Put up video recording devices inside the house without my consent or knowledge.
m. Repeatedly, and to the day of writing this affidavit, tells the children to lie to me.
n. He constantly leaves the doors, including the front door to our home, unlocked and wide open risking our children’s safety.
The children are in a constant state of anxiety and fear of the applicant as they have told me so. I have had to be on medication for anxiety and depression. My doctor has told me that I [have been given] the highest dose that can be prescribed. The stress has even resulted in me having to take medical leave from work. Sadly, this behaviour has also impacted the children’s quality of life in the home. The children refuse to have friends over because they worry about their father showing up and causing a scene.
24The applicant father denies these allegations. He states:
The conflict and conduct described by Alessandra in her affidavit is completely fabricated and I vehemently deny every allegation against me. Alessandra initially made these allegations against me in her Answer, and she has sporadically repeated them throughout the course of this proceeding. …
The primary source of discomfort in the home is Alessandra. She has always actively and deliberately monopolized all common areas. In response, I have largely remained in my office and bedroom, except when I have spent time with the children, cooking, watching television, on the rare occasion that Alessandra is not monopolizing the living room, and engaging in other activities with them. …
I have a strong relationship and bond with both of our children, and I am deeply disappointed that Alessandra has repeatedly chosen to malign me with false allegations of violence and abuse.
I previously considered bring a motion for exclusive possession, but I refrained out of concern that such action would be more disruptive to the children, and instead, I made sacrifices to ensure the comfort of the children in the home. Thankfully, we successfully navigated the transition to separation, and the children are older now and living their own lives. Except for exposure to Alessandra’s partner and their relationship, there is no conflict that [CP] must be protected from.
I acknowledge that I have expressed concern with [VP]’s prior reliance on melatonin to combat her insomnia. However, I did not claim that she would become a “drug addict”. Instead, I discussed the problem with her, and I shared details about my brother’s struggle with insomnia and the successful, non-synthetic treatment that helped him. I am happy that [VP] was ultimately able to eliminate her dependence on melatonin, and that she no longer struggles with insomnia.
I also acknowledge that there are several security cameras installed throughout the matrimonial home. I was questioned about this matter by Alessandra’s former counsel, and I explained then, and I repeat now, that our neighbourhood has been subject to many incidents of theft since 2018. We have three security cameras installed in the home. Each security camera faces outward. They record the front of the home, the rear of the home, and interior of the garage, and specifically the area surrounding where I park my vehicle. There are no security cameras that record the interior living or common spaces of the home.
25In reply, the respondent mother denies that her allegations of the applicant’s conduct are fabricated and states:
The respondent has engaged in a pattern of verbal, emotional and psychological abuse throughout the majority of our marriage. He has demeaned my appearance, employment, friendships, and personal interests. He has attempted to isolate me and has engaged in similar conduct towards our daughters. The Children’s Aid Society has been involved with our family as a result of the respondent’s conduct. These concerns have been raised consistently through these proceedings. It is frustrating that he continuously downplays this behaviour. …
He has been home more in the last two weeks than in the last two months. His behaviour towards me has caused such emotional distress that I have had to take time off work, see a counsellor and have been prescribed medication. His behaviour has changed throughout this proceeding. As we get closer to trial, his behaviour has been escalating. He is growing more and more comfortable being rude, verbally abusive and removing items from the matrimonial home.
26The respondent refers the CAS but provides no particulars of their involvement or their findings nor does she provide an excerpt from their records to support her assertion. Similarly, the respondent references seeing a counsellor and being prescribed medication but provides no particulars or supporting documentation.
27In reply, the respondent mother also denies that the children reside primarily outside the matrimonial home. The applicant made no such allegation but rather stated that the older child lived primarily on campus and when home spends most of her time with her boyfriend.
28### Best Interests of the Children Affected
29The applicant father states that the conflict and conduct described by the respondent mother is fabricated and denies her allegations. There is no evidence that corroborates the respondent mother’s allegations. Further, there is no independent evidence of the views and preferences of the children such as a therapist’s report: Leckman v. Ortaaslan , 2013 ONSC 3324 , 35 R.F.L. (7th) 98 , at paras. 20-25 . I cannot conclude that granting the respondent’s motion would be in the children’s best interests. Certainly, the timing of this motion appears inconsistent with the respondent’s position that the children have been adversely impacted by the applicant father’s presence in the matrimonial home as more than six years have passed since the date of separation, about two and a half years have passed since the date of her earlier motion for exclusive possession, which was adjourned, and they are only one year from trial.
Conclusion
30I dismiss the respondent’s motion for interim exclusive possession of the matrimonial home. The parties’ evidence on most material points, including their living arrangements and their behaviour within the matrimonial home, is conflicting. Neither party offered corroborating evidence. On this paper record, I am in no position to make findings of credibility based on their conflicting evidence. I am not satisfied that the shared used of the matrimonial home has had an adverse impact on the children. Further, I am not satisfied that the applicant father’s continued shared use of the matrimonial home has been anything more than more than inconvenient or unpleasant.
31As agreed by the parties, given that the applicant father is the successful party on this motion, the respondent mother shall pay his partial indemnity costs of $4,240.21 within 30 days.
Mr. Justice M.D. Faieta
Date: February 12, 2026