Exclusive Possession of the Matrimonial Home

Can I force my spouse to leave the matrimonial home after separation?

This is the third in a three part series on matrimonial homes.  This series provides information on (1) what a matrimonial home is, (2) how a matrimonial home is treated in the equalization process, and, in this post, (3) exclusive possession of a matrimonial home.

What does exclusive possession mean?

An exclusive possession order allows you to live in the matrimonial home to the exclusion of your spouse.  A spouse will sometimes apply for an Order for exclusive possession when there are safety concerns, or there is a great deal of conflict or tension in the home.

Section 24(1)(b) of the Family Law Act states that:

Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,

(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;

How can I get exclusive possession?

If you want to obtain an Order for exclusive possession, you will need to have your spouse’s consent or bring a Motion.  Normally Motions can only be brought after a Case Conference is held.  If you or your children are in danger, you may be able to bring a Motion on an urgent or emergency basis before a Case Conference, but this is the exception to the general rule.

What factors will the court consider?

If you or your former spouse requests an Order for exclusive possession, the court will consider a number of factors, including:

  • The best interests of the children involved, including the possible disruption of moving and their views and preferences if they can be reasonably ascertained;
  • Any existing property or support Orders;
  • The financial position of both spouses;
  • Any written agreement between the parties;
  • The availability of other suitable and affordable accommodation; and
  • Any violence committed by a spouse against the other spouse or the children.

What are some of the consequences of an exclusive possession Order?

An Order for exclusive possession allows you to change the locks on the matrimonial home.  You cannot change the locks without such an Order.

The Family Law Act sets out the consequences of contravening an Order for exclusive possession.  A person who contravenes such an Order can be arrested without a warrant and subject to fines or imprisonment.

An exclusive possession order may result in you having to cover the expenses related to the home and may also result in you having to pay “occupation rent” to your spouse, as your spouse will not be living in a home they own or otherwise have rights to.  Section 24(1)(c) of the Family Law Act states that the court may, by order, “direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse”.

An Order for exclusive possession does not impact either spouse’s right to ownership of the home.  It also does not give the spouse who is living in the house the right to sell or dispose of any of the belongings in the home.  It also does not mean that the spouse who is not living in the home is prohibited from contacting the other spouse. 

If you have questions or comments about this post, please start a conversation with me on Twitter @freshstartott.  

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