Maggie House -Published July 26, 2023
You’ve separated from your partner, but they’re refusing to leave the family home. What can you do to get them out of the house, and in what circumstances?
One option is to seek what is called an “Exclusive Occupancy Order”. These are orders governed exclusively by the Supreme Court. Under section 90 of the Family Law Act, the court may order a spouse to period of exclusive occupation of a family residence to the exclusion of the other spouse.
To receive an order for exclusive occupancy of the family residence an applicant must show that:
- It is a practical impossibility for parties to share the use of the matrimonial home and;
- They are the preferable occupant on the balance of convenience.
To say it is a practical impossibility for parties to share the use of the matrimonial home is to say that it would be intolerable or unacceptable in an objective sense. It is insufficient that parties simply do not want to live together. In Wilson v Wilson, 1995 Cannily 1445 (BCSC), an application for exclusive possession of a matrimonial home was denied because the applicant did not demonstrate it was practically impossible for the parties to live together. The Respondent had moved into the basement of the family home, but used the bathroom upstairs and ate meals with his estranged wife and children. There was little to suggest that the parties were incompatible in these circumstances. They had not been fighting and there was no indication that their living arrangements were affecting the children.
In Hazlewood v Hazlewood 2008 BCSC 1005, the Court found that a party’s fear of the other party is sufficient to make shared occupancy a practical impossibility.
Commonly, a party experiencing family violence may seek an exclusive occupancy order. Under Section 1 of the Family Law Act, family violence has a broad definition that includes emotional, financial, and/or psychological control. Only when there is urgency or a real possibility of violence should an application for exclusive occupancy be made without notice. Otherwise, notice is required so that the Respondent can prepare a reply.
Balance of Convenience
To determine the balance of convenience, the courts must consider and weigh the circumstances of both parties’ situations. Judges may examine factors such as the ability to earn income, the financial circumstances of each party, physical and/or mental health, conduct of parties, and alternative living accommodations available.
In P.F. v J.T.F., 2021 BCSC 1506 and Evans v Mahtoy, 2015 BCSC 2141, both the Claimant’s health was a crucial factor in assessing the balance of convenience. In P.F. v J.T.F., the Claimant worked away from home for part of the week. In a written affidavit, the Claimant deposed that the Respondent had been physically, verbally, and mentally abusive towards her and her son. She felt unsafe in her own home and did not have any privacy. Master Elwood stated that the “fact that [the Claimant] works away from home for part of the week does not make [the Respondent] the preferred occupant of the home.” Despite being away for days at a time, he suggested that the Claimant’s mental health was deteriorating as a result from living with the Respondent. Therefore, it was more convenient for the Claimant to remain in the family home.
In Evans, the Claimant’s ability to earn income was compromised by her battle with Graves’ disease. Graves’ disease is an autoimmune disease that impacts thyroid functioning. The Claimant’s career suffered, leading to financial hardship. She also continued to suffer because of her fragile emotional state. The Court found that the Claimant, on a balance of convenience, had a greater need to live in the former family home.
The best interests of the children can also sway the balance of convenience. In Ferguson v Ferguson, 2014 BCSC 216 the Court found that the balance of convenience weighed in favour of the applicant because she was the primary caretaker of the children.
Disclaimer – The information found in this document is of general nature and is not intended to be legal advice. Please contact our office to speak further about any particular legal question you may have.