Who gets to stay in the house after separation?
By David Kim, Calgary Family Lawyer
Everything you need to know about getting Exclusive Possession Orders in Alberta
One of the most common, yet contentious scenarios after separation is the issue of who gets to stay in the family home until the divorce or other court proceedings are finalized. If the parties cannot come to some arrangement themselves, and if neither spouse wishes to sell the house, they must make an application to court, and the court will decide who gets to stay in the house. It can add stress to an already difficult situation and it’s important for people to understand their rights and learn what the steps are to obtain exclusive possession of their home.
What is Exclusive Possession?
Simply put, an exclusive possession order is a court order that permits one party to stay in the family home without being interfered with or otherwise restricted by the other party. The court also has power to evict anyone from the home, restrain them from visiting or entering the home, and ordering the evicted party to continue paying the mortgage despite not living there.
What does the court look at when granting an Exclusive Possession Order?
When one or both parties make an application for exclusive possession, they must do so pursuant to section 19 of the Alberta Family Property Act (FPA) and the court must apply the factors set out in section 20 of the FPA. The courts will consider the following:
- The availability of other accommodation within the means of both parties
- The needs of any children residing in the family home
- The financial position of each of the parties
- Any order made by a court with respect to the property or the support or maintenance of one or both of the parties
Generally, it is not enough for one party to simply want the other one out of the house. Instead, the applicant must show that a) continued cohabitation is intolerable based on serious evidence such as family violence or medical concerns, and b) the balance of convenience favours the applicant residing in the house while the respondent leaves.
In the case of Manning v. Manning, 2022 ABQB 348, the mother made an application for exclusive possession of the family home. However, the application was dismissed because she failed to prove her allegations of intolerable living arrangements and it was seen that general rudeness and minor annoyances did not meet the level of harassment or intimidation necessary for her to have obtain a decision in her favour.
In Xie v. Messam, 2022 ABQB 296, both the wife and husband made applications for exclusive possession of the family home, but it was the wife who was ultimately successful on the basis that both parties had means to pay for alternate accommodation. The husband failed to provide full financial disclosure which ultimately tipped the balance in the wife’s favour.
What other ways can someone get exclusive possession of their home?
In Alberta, section 15 of the Law of Property Act (LOPA) allows a co-owner of a property to make an application to terminate the co-ownership. Additionally, the court has the power to order a division of the land, or a sale of all or part of the land and distribute the proceeds between the co-owners, or the sale of one co-owner’s share of the property to another co-owner. Therefore, this remedy found in the LOPA allows people to obtain exclusive possession regardless of being in a family relationship with the other owner and there is no need for the house to be a family home.
What is the difference between making an application under the FPA vs. LOPA?
Although an individual can practically achieve a similar outcome by making an application under the FPA versus the LOPA, the courts have made it clear that an exclusive possession order made under the FPA will supersede any order made under the LOPA. In fact, the FPA is seen as all-encompassing for issues related to distribution of family property between spouses/partners.
Ultimately, an application for exclusive possession, regardless of which law you apply under, will likely require legal expertise and know-how to ensure that such an application is not made in haste. Our highly experienced team of family lawyers at Crossroads Law is standing by to advise you on this and other family law issues. Book your free 20-minute consultation today to get started.