A common question that newly separated couples sometimes face is: who should stay in the home? Occasionally the parties will continue to live together under the same roof even after separation, for financial reasons or for the benefit of the children. There are times, however, when one (or both) parties no longer wishes to continue living together in the same home and there is disagreement about who should be the one to leave.
Section 124 of the Family Relations Act enables the court to make an order granting one party exclusive possession and use of the former matrimonial home on a temporary basis:
124 (1) An order under this section is for temporary relief pending determination of the rights to the property of the spouses by agreement or by a court that has jurisdiction in those matters.
(2) A court may make an order under this section respecting property that is owned or leased by one or both spouses and is or has been
(a) occupied by the spouses as their family residence, or
(b) personal property used or stored at the family residence.
(3) On application, the court may order that one spouse for a stated period
(a) be given exclusive occupancy of the family residence, or
(b) to the exclusion of the other spouse may use all or part of the personal property at the family residence.
(4) An order under subsection (3) does not authorize the spouse to materially alter the substance of the family residence or personal property.
(5) A spouse does not acquire a proprietary interest on the making of an order under this section.
(6) Subject to section 125, a right of a spouse to exclusive occupancy or use ordered under this section does not continue after the rights of the other spouse, or of both spouses,
as owner or lessee are terminated.
(7) Nothing in this section prevents the filing of an entry under the Land (Spouse Protection) Act.
Case law has established that an applicant for an order for exclusive possession and use of the former matrimonial home must show that:
- Shared use of the home is a practical impossibility; and
- if the previous requirement is met, then it must be shown on a balance of convenience that the applicant should be the preferred occupant.
The “practical impossibility” test is a difficult one to meet, as courts will not lightly grant an order ejecting someone from their own home. The following points are only some of the factors that are considered:
- It is not enough to show incompatibility. Shared use of the home may still not be considered a practical impossibility even though the spouses are living separate but under the same roof in an unpleasant and acrimonious manner.
- There must be clear evidence that the parties cannot live together under the same roof, especially if the children would benefit from having both parents living in the same home.
- The longer the parties have lived separately in the family home, the harder it will be to obtain an order for exclusive possession and use of the home.
If the applicant has managed to prove that shared use of the home is a practical impossibility, the next step is to prove that the applicant should be the preferred occupant of the home on a balance of convenience. The court will consider factors such as whether the applicant is the primary caregiver, the availability of alternate accommodation and the financial ability to do so, and the degree to which the children’s lives would be disrupted if one parent were to move out versus the other.
Our lawyers at MacLean Family Law Group are experienced in applications involving exclusive possession of the family home. Speak to one of our lawyers today if you or your spouse is seeking an order for exclusive possession.
Written by Jennifer Lin
