Family Home

Under The Family Property Act, the family home is treated differently than other family property. The whole value of the family home is family property even if one spouse brought it into the relationship.

The family home is the place where one or both spouses live, or have lived, with the intention of that place being the family home. It can be a house, a part of a house, a mobile home or condominium, or suite. The home can be owned or leased by one or both spouses. In urban settings, the family home includes the lot the house is on. In the case of farmland, the family home includes the home quarter.

In some situations, there may be more than one family home. For example, some couples split their time between the city and the country, with a home in both places. In these situations, the court can designate which home will be treated as the family home for the purposes of division under the Act. The remaining home will be treated as other family property.

Until there is a court order or an agreement, both spouses have an equal right to live in the family home. However, when couples separate, they usually need to decide who will live in the home in the short term. Having a plan for the immediate future can give couples the time they need to deal with the family home.

Under The Homesteads Act, the family home cannot be sold or mortgaged without the consent of both spouses. This is the case even if it is owned by one spouse alone. These protections end when married spouses divorce or after common law spouses have been separated for 24 months.

Under The Family Property Act, the court can grant one party exclusive possession of the family home and household goods. The power to make such an order is discretionary. This means that the court will only make such an order when they feel it is appropriate in the circumstances.

The court will also decide the terms of the possession. The court can order a spouse:

• to be given possession for their lifetime
• to be given possession for a different period of time such as while any children are still living at home
• be responsible for things like repairs, insurance, taxes and mortgage payments
• who has possession to make payments to the other spouse
• without possession not to re-enter or attend at or near the family home
• who is granted exclusive possession of the family home not to sell it or put conditions on any sale

In deciding whether and on what conditions to give one spouse exclusive possession of the family home and household goods, the court must consider:

• the needs of the children
• the conduct of the spouses towards each other and towards the children
• the availability of other accommodation within the financial means of either spouse
• each spouse’s financial condition
• any binding agreement that was made between the spouses or, if the court sees fit, any other written agreement
• any orders that have been made regarding support, parenting of the children or division of property
• other relevant circumstances

When a spouse asks a court to order another spouse to leave the family home, they may be required to show compelling reasons. Something more than that they simply do not want to live together may be needed. Exclusive possession has been granted where the parties were “separated, warring and engaged in litigation.” However, they have also been ordered in cases where there is no evidence of “warring” or physical violence. Determining whether to make an exclusive possession order is very dependent on the circumstances of each case. It must be considered within the context of the factors set out above.

Either party can apply to the court to change or end the order for possession if circumstances change after the original order is made.