Who retains the family home?
It’s a question that often arises during the division of family property. Sometimes however, who retains the home on a temporary basis during litigation can also be a contentious issue.
In certain situations, it may be intolerable for both parties to remain in the home while separated. This can be particularly true when the matter is high conflict or where there are allegations of family violence.
Where continued cohabitation is intolerable, a party (a spouse or Adult Interdependent Partner) may apply to the Court to obtain an Order for exclusive possession of the family home pursuant to section 19 of the Family Property Act, RSA 2000 c. F-4.7 (the “Family Property Act”) or section 68 of the Family Law Act, SA, 2003 c F-4.5 (“Family Law Act”). Exclusive possession, as it implies, effectively allows one party (or one party and their children) to temporarily reside in the family home to the exclusion of all other individuals, including the other spouse or adult interdependent partner.
In addition to giving a party exclusive possession, the Acts also permits the Court to:
- Evict one of the parties from the home;
- Restrain one of the parties from entering in or attending at the home; and
- Impose any other conditions it considers necessary.
In making an exclusive possession Order, the Court may also grant that same party exclusive use of any household goods. Household goods include any personal property owned and ordinarily used by one of the parties or the children for transportation, household, educational, recreational, social or esthetic purposes. It is not unusual for parties to seek exclusive use of vehicles, equipment necessary for upkeep of the property or general household furniture.
Factors to be Considered
In deciding whether a party should be granted exclusive possession, the Court must take into consideration:
- The availability of other accommodations for both parties;
- The needs of any children who reside in the family home;
- The financial means of both parties; and
- Any Orders which deal with the property, or support of the parties or any children.
Impact of an Exclusive Possession Order
An Order for Exclusive Possession is not permanent – it is a temporary Order and does not impact the final determination of a person’s interest in family property or the ultimate division of family property.
However, such an Order can have serious implications: if an Exclusive Possession Order is properly granted, in certain circumstances, a party can register this Order with the Land Title’s Office to protect their right to reside in the home.
If you have any questions about Orders for Exclusive Possession or any other family law issues including Emergency Protection Orders, you can set up a consultation by calling our office at 587-440-3070 or by using the contact form on our website. Our office is set up to work virtually and we can assist you with any family or divorce issues you may have during the Covid-19 pandemic.
The above information regarding Exclusive Possession Orders does not constitute legal advice. EBL Family is not liable for any reliance on the above information.