Exclusive Home Possession Order – Understanding Rights of Occupancy During a Divorce
Its a question we’re too often asked, “I want a divorce and my spouse won’t leave our home – What can I do?” Here, Brian Warrington a senior Calgary family and divorce lawyer with Mainwood Legal shares his insights.
An experienced Alberta family lawyer will have an answer to that one. Under Alberta’s Family Property Act or Family Law Act, a spouse, married or not, may obtain a court Order enabling a right of occupancy, meaning one spouse must depart the family home. It is similar to, but not quite a Restraining Order. Labelled an Exclusive Home Possession Order, it prohibits one spouse from re-entering a home for a period of time. And it can come with a police enforcement clause.
A court can grant an Order even if you yourself do not own the home. “It’s my house” your spouse says! No matter! A court is not interested in ownership. And, there need not be violence. With family discord, one spouse at home with children, and little or no money, a court will usually grant the Order. The Order may include household contents meaning furniture remains with you.
A court application with notice of a court date is formally served on your spouse. That can happen fairly quickly, often within days. Your spouse may oppose the request or they may voluntarily depart. If they do leave you may still obtain an Order. A Judge signs a consent Order as prepared by your lawyer and the right of occupancy, with the force of law, is the same.
Typically, such an Order is in place for one year, sometimes more. You should use this time to determine if you can buy spouse out of the home’s equity and if not, negotiate a date to sell.
An Exclusive Home Possession Order will not address child custody and other property rights. Child custody and child access remain live issues as is sorting out the home’s equity and other property matters.
Before proceeding to court consider options; a spouse occupying the basement, negotiating a move out date, alternate accommodation with family, friends, or a nearby apartment. Living nearby means negotiating child custody and child access is easier.
Be reasonable with personal possessions. The last thing your lawyer wants to do is debate clothing, toiletries etc. Furniture and other necessary items, especially where children are involved, should remain in the home.
If a spouse knows they are not surrendering rights of child custody nor an entitlement to a fair division of property, it is my experience that one spouse will voluntarily leave. And it is preferable to negotiate a move out date and avoid an expensive court application.
A mortgage, insurance and property taxes must still be paid. Suggest that the departing spouse pay 1/3 of the mortgage at least until property is divided or the house sold. Married or not, a couple is financially intertwined and undoing that will take time.
An Exclusive Home Possession Order is intended to minimize family discord. It is a temporary thing but also an effective thing. Think of it as step in permitting the dust to settle. Next, you and your lawyer negotiate moving you, your kids onto the next stage of your life.
Brian Warrington is a senior Calgary family lawyer who oversees the family law department of Mainwood Legal law firm located in Bridgeland reach him at Brian.Warrington@mainwoodlegal.com.