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. Although both spouses have the right to live in the family home, when couples separate they usually need to decide who will live in the home, at least for the short-term. Having a plan for the immediate future can give couples the time they need to come to an agreement or ask the court for an order concerning the family home.
Under The Homesteads Act, property that is or has been occupied as the family home during the spousal relationship cannot be sold or mortgaged without the consent of both spouses, 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.
Exclusive Possession of the Family Home
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, meaning 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 or any shorter period of time, such as while any children are still living at home. The court can decide who will be responsible for things like repairs, insurance, taxes and mortgage payments. The court may also require the spouse who has possession to make payments to the other spouse.
Along with an exclusive possession order, the court may also direct that the other spouse vacate the family home and not re-enter or attend at or near it.
Where one spouse is granted exclusive possession of the family home and the other spouse owns all or part of it, the court can make an order preventing the sale of the house or placing conditions on any sale.
In deciding whether to give one spouse exclusive possession of the family home and/or exclusive use of household goods, and what conditions to include in the order, 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 or something more than that they are simply not happy living together. Exclusive possession orders have been granted where the parties were “separated, warring and engaged in litigation” but 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 individual circumstances of each case and 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.
An interim order for exclusive possession of the family home does not affect either spouse’s ultimate right to an equal division of that home, nor does it determine who will ultimately be given possession of it. While a court on an interim application should never lightly interfere with a spouse’s right to an equal distribution of the family home or their right of equal possession, the court must be pragmatic in its approach to applications for exclusive possession. This is so because family law situations are so often volatile and to leave the parties embroiled in litigation under the same roof may, on occasion, only serve to exacerbate the situation… The court must balance each spouse’s right to possession against the factors [in the Act].