How to Get Exclusive Occupancy of the Family Home After Separating in BC
By Tanya Thakur, Vancouver Family Lawyer
Determining who remains in the family home after separation is frequently an issue for spouses who are in the process of divorce or separation. In BC, separating spouses face a competitive housing market. It may not be financially feasible for one or more spouses to obtain alternate rental accommodations or purchase a second property after separation and it may take some time for spouses to decide how to divide their interest in the family home. In the interim, separating spouses need to resolve who stays in the family home and who moves out. This decision is often complicated if the separating spouses have children.
If you and your ex-spouse cannot resolve who stays in the family home after separation, you may make an application for exclusive occupancy of the family home.
The court may make a temporary order for exclusive occupancy of the family home sometime after the parties separate, but before the parties can reach a final resolution. An order for exclusive occupancy is made under Section 90 of the Family Law Act.
The Test for Exclusive Occupancy of the Family
To obtain exclusive occupancy of the family residence, the applicant must show:
- continued shared use of the family residence is a practical impossibility;
- on a balance of convenience, the application should be the preferred occupant.
The applicant must show something more than incompatibility of the spouses to prove that shared use of the family residence is a practical impossibility. In many family law disputes, spouses may interact with each other in an unpleasant and acrimonious manner, but shared use of the residence may still be a possibility. If the conduct of one or both spouses amounts to family violence, shared occupancy may be a practical impossibility.
In assessing the balance of convenience, the court may consider the applicant’s ability to earn income, mental and physical health, and other financial issues.
The court may also consider the interests of children who normally reside in the family residence in determining which spouse is the preferred occupant. The court will not lightly disrupt the continued occupancy of the residence by dependent children of the marriage or by their custodial parent.
It is helpful to consult a family lawyer to assess your claim for exclusive occupancy of the family residence or to assess your case if your spouse is making a claim for exclusive occupancy of the family residence. The Vancouver family lawyers at Crossroads Law have experience in making and defending claims for exclusive occupancy of the family residence. Contact us today for your free 20-minute consultation to learn more.
