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5 Best Calgary Divorce TipCalgary Matrimonial Home Exclusive Possession

Calgary Matrimonial Home Exclusive Possession cases are important to our Calgary family law clients and this step often happens early in Calgary family law proceedings. This is the third in a series of blogs on how the Alberta family home is treated on separation. Senior Calgary family lawyers member, Peter Graburn explains how Calgary Matrimonial Home Exclusive Possession works.

Calgary Matrimonial Home Exclusive Possession

As previously indicated, when couples separate or divorce, one of the biggest decisions they have to make (after how they will co-parent their children) is what to do with their Calgary family home. Sometimes they can agree to either: sell the home; one spouse will remain in the home (ie. with the children), or; (rarely) share the home with the children (commonly called “nesting”). However, sometimes the couple cannot agree on how to deal with the family home, raising three (3) possible legal options:

  1. Exclusive Possession – which spouse should remain in the home; 
  2. Partition & Sale – whether the home should be sold, and;
  3. Occupation Rent – which spouse is responsible for paying the home’s expenses if only one spouse lives in the home.

In our previous articles, we looked at the issues of Occupation Rent and Partition & Sale. In this article, our team of Calgary family lawyers looks at the final issue: “Exclusive Possession”.

What is “Calgary Matrimonial Home Exclusive Possession”?

Having a family home with a separated partner involves two (2) aspects: who are formally registered on title to the property (ie. joint-ownership, previously discussed under the topic “Partition & Sale”), and who lives in the home (possession). Joint-owners of property each have the equal right to occupy and use (ie. possess) the property. This is fine when the partners are together. But what happens when the partners separate and cannot agree on who will continue to live in the home? And how do you prevent the other person from remaining living in the home? This is called “exclusive possession” of the family home.

“Exclusive Possession” is the right granted to either a married spouse (under the Alberta Matrimonial Property Act) or common-law partner (under the Alberta Family Law Act) to exclusively live in the family home to the exclusion of the other spouse/partner.

While the Court has the discretion to grant a Calgary Matrimonial Home Exclusive Possession or not, these Alberta Acts (unlike Alberta legislation regarding “Partition & Sale”) set out very specific factors the Court should consider in deciding whether to grant an Exclusive Possession Order, including (s.20 MPA, s.69 FLA):

the availability of other affordable accommodation to both spouses;

the needs of children residing in the family home;

the financial position of each spouse;

any other Court Order dealing with the property or financial support, and;

any restrictions or conditions imposed by a lease on the family home.

Other provinces (ie. Saskatchewan, Ontario) have additional factors to consider, including:

any stronger emotional attachment to the home;

any binding agreement between the spouses, and; 

the conduct of the spouses (including violence) towards each other and toward the children.

Our Calgary family lawyers know that the need for Exclusive Possession of the Calgary family home is a very extreme situation (both leading up to and following an Order) – one spouse may be evicted and is prohibited from entering and living in their (former) home, sometimes due to safety concerns. It may also lead to the excluded spouse bringing a claim for Economic Rent if that spouse continues to pay for expenses (ie. mortgage, taxes, insurance, utilities, etc.) on the family home. Accordingly, Exclusive Possession Orders should only be seen as a temporary measure while separated spouses work out the rest of their outstanding differences (ie. custody and parenting of children, division of matrimonial property, etc.).

CONCLUSION

As can be seen from the three issues discussed in this series of articles (Exclusive Possession, Partition & Sale, and Occupation Rent), dealing with the family home can involve some of the most difficult and emotional decisions on the breakdown of a family relationship (whether married or common-law).

Calgary Matrimonial Home Exclusive Possession assist their Clients to understand these three difficult and different decisions that may need to be made regarding the family home, and the inter-related nature of bringing one or more of these Applications regarding that home.

Call our Calgary Matrimonial Home Exclusive Possession lawyers toll free to set up a meeting at our downtown Calgary office.