When parties separate, a common question we get asked is whether they can force their spouse to leave the family home.

While some couples continue to reside together after separation, for others, living in the same home is not an option. 

Section 3(4) of the the Family Law Act specifically recognizes that “that spouses may be separated despite continuing to live in the same residence”. Meaning that spouses maintain their “separated” status even if they continue to live together as long as they have communicated to the other spouse of their intention to separate permanently.

When living together post separation is not an option, a party can apply for an exclusive occupancy order whereby the court orders an individual the right to live and reside in the family home while the other party is ordered to leave the family home. 

An application for exclusive occupation of a family home, in particular, is highly disruptive and very consequential for the parties, particularly where there are children involved.  An order for exclusive occupancy can evict an individual from the family home, prevent them from entering the family, and can give a party exclusive possession of the family home along with the household goods that individual needs to look after themselves. 

Section 90(1) of the Family Law Act has described a family residence as:

  1. a residence that is owned or leased by one spouse or both, and 
  2. the ordinary place of residence of the parties. 

Furthermore section 90(2) of the Family Law Act authorizes the court to make an order granting a spouse for a specified amount of time to have exclusive occupation of a family residence.

The law in respect of exclusive occupancy has been long-established in British Columbia. 

The legal test for an order for exclusive occupancy pursuant to section 90 of the Family Law Act is a 2 part test where Applicant must show on a balance of convenience:

a) shared use of the family residence is a practical impossibility and 

b) the applicant is the preferred occupant of the property, 

Under 1st part of the test an individual seeking an order for exclusive occupancy must establish whether there is a practical impossibility. Master Bilawich in Glowacki v Nesbeth, 2021 BCSC 535 (CanLII)  explained that “there must be something more than the parties simply having differences and not wanting to live together. There must be something which makes the situation intolerable or unacceptable in an objective sense.”

Under second part of the test, the applicant seeking orders for exclusive occupancy must demonstrate on a balance of convenience, that they are the preferred occupant. The factors assessed by the court under this objective part of the test are the following:

  1. any acquiescence or delay
  2. the conduct of the parties
  3. the economic position of the parties
  4. alternate living accommodation available to either of the parties; and
  5. other relevant circumstances such as health.  

The courts have noted that an application for exclusive occupation of a family home should only be made without notice where there is urgency or a real possibility of violence if notice is given.

When assessing the balance of convenience, the court examines the parties’ situations and must weigh the disadvantages to the party seeking exclusive occupancy against the disadvantages to the who the other individual.

In Main v Smith, 2021 BCSC 845 Master Robertson at para 26  noted that family violence issues are a significant factors considered by the court and that other concerns regarding conduct, that may show a relationship is of a sufficient toxicity can lead to the court in granting an order for exclusive occupancy as it demonstrates there is more than an inconvenience, but a practical impossibility for the parties to live in the same residence. 

Applications to the Court for an order for exclusive occupancy is fact driven and where there are children, their best interests are given considerable weight. Each of the parties and children’s particular circumstances are assessed by the court including if there has been any history of family violence.

Contrary to what most people think, getting orders for exclusive occupancy is difficult to achieve. The person seeking to oust the other spouse for exclusive occupancy, has the burden to show that continued cohabitation is “intolerable or unacceptable”. It is not enough to simply state the preference to be living apart. 

If you are seeking exclusive occupancy or need advice on how to ensure you  are not ousted and remain in your home, contact our office to speak to one of our experienced lawyers at:

Email:  info@snlaw.ca or 

Call us at: 604 568 5181

Book a consult here to learn more: https://snlaw.ca/appointments/

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650 - 475 W Georgia St, Vancouver, BC

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