Vancouver Exclusive Occupancy Family Lawyers handle cases where one spouse wants exclusive use of the family home or vacation property. The Vancouver Exclusive Occupancy Family Lawyers at MacLean Law handle hundreds of family law cases and are very familiar with the strategies for successfully obtaining or opposing an exclusive occupancy application. Lorne MacLean, QC leads our top rated Vancouver family lawyers law firm.
Our Vancouver Exclusive Occupancy Family Lawyers are often asked what is the test applied to win exclusive possession of the matrimonial home? Our Vancouver Exclusive Occupancy Family Lawyers are also asked by our clients if they should voluntarily leave the home. Other times people locked in a bitter conflict both refuse to leave the home and this means a court application by our top rated Vancouver Exclusive Occupancy Family Lawyers is required. Contact us early on or your chances of success decrease. We have offices across BC and in Calgary.
Vancouver Exclusive Occupancy Family Lawyers
The recent Vancouver exclusive occupancy case of Evans v. Mahtoy provides a tidy summary of how the law works when someone wants to be the sole person living in the family home. Some people are surprised how hard it is to be the sole user of a formerly shared home until it is sold or bought by one spouse.
[28] The parties agreed on the legal test for granting an order pursuant to s. 90 of the FLA. In Bateman v. Bateman, 2013 BCSC 2026 at para. 44, Mr. Justice Greyell noted that a claimant seeking exclusive occupation of a family home must establish that the shared use of the family home is a practical impossibility and that the claimant is the preferred occupant of the home on a balance of convenience. This test was in place prior to the enactment of the FLA, and it has been suggested that the legislation’s emphasis on family violence has altered the significance and weight of any violence the court finds has occurred. In J.R.E. v. 07—–8 B.C. Ltd., 2013 BCSC 2038, Master Baker commented that the increased focus on family violence in the FLA may have modified the approach one takes to the legal test for exclusive occupancy (at paras. 8 and 10-11):
[8] …. While [FLA s. 90] provides for exclusive occupation, nothing in the balance of the section precludes the other party from attending at or entering upon the premises although if that extended to an attempt to co-occupy the premises one expects that the other party would be in breach. The problem with this potential state of affairs is that it is unusual to accompany an order for exclusive occupancy with a peace officer assist clause; i.e. a direction to peace officers to assist in the enforcement of the order and, in effect, eject or remove the other party. Some constabularies interpret s. 90 orders, in the absence of the peace officer assist order, to be a property matter and not a protection issue, and that without specific direction the peace officer in question is not to assist either party in asserting or challenging what appears to them to be a proprietary right.…
[10] The law in respect of exclusive occupancy has been long-established and, interestingly, has not been seriously addressed or changed by the FLA …. For over 30 years the test remained:
- a) is continued cohabitation a practical impossibility and
- b) if so, on the balance of convenience which party should occupy?
I suspect that the first part of the test has been, if indirectly, modified by the FLA and its increased focus on family violence. I suspect that in the past there have been instances that, by current legislation, would qualify as family violence that the court is now mandated to consider and act upon, but which may not, at the time and under the Family Relations Act, have created an impossible situation in the mind of the court. While the FLA does not directly link ss. 90 and 226 with family violence, if one found facts falling within the FLA’s definition of violence I expect that the court would be obliged to factor that into any application for exclusive occupancy.
[11] It seems to me, then, that the immediate question is. Has there been, or is there likely to be, family violence? Such a finding would affect both occupancy and protection. Section 1 of the FLA defines family violence widely …
[57] Given the above factors, I conclude the respondent’s evidence about financial matters has questionable reliability and credibility. Thus, I conclude that the claimant has established she has a greater financial burden by not being able to live at the Property.
[68] As between both parties, I find the balance of convenience favours the claimant because there is no dispute that her ability to earn income has been compromised by her health. She therefore has a greater need to live in the Property than the respondent. The respondent’s income is unaffected by where he lives. It is also significant that the claimant continues to pay strata fees associated with the Property even though she has not lived in it for over a year.
