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When getting separated or divorced, one of the first issues a couple must deal with, aside from determining interim terms for the care and parenting of their children, if applicable, is how to deal with the matrimonial home, or the family home, as it is sometimes known in Alberta. In some cases, a couple may come to terms on their own with respect to the family home. One person might opt to move out, allowing their spouse to remain in the home, often with the couple’s children, to prevent unnecessary disruptions to the children’s lives. In other cases, a couple might opt to sell the family home right away and divide the proceeds from the sale.

Some couples choose to remain in the home together throughout their separation, particularly in cases where neither party can afford to pay for a separate residence. However, in many cases, particularly in high-conflict separations and divorces, the parties might not be able to reach a mutual agreement on who should remain in the home. In these cases, the parties will often turn to a court to request an order for exclusive possession.

What is ‘Exclusive Possession’?

An order for exclusive possession of the family home means that one spouse, to the exclusion of the other, is entitled to remain in the home. The order can be on an interim basis, until the terms of the divorce or separation are finalized, or it can be permanent. Further, in granting this order, the court can also order the eviction of a spouse from the home if they refuse to leave, and/or to restrain that spouse from entering the house once the other spouse has been granted exclusive possession.

Defining the “Family Home” in Alberta

Alberta is unique in its treatment of the matrimonial, or family home. In some provinces, such as Ontario, the matrimonial home concept is only applied to married couples. If a couple is living together in a common-law relationship, or an adult interdependent partnership, as it is known in Alberta, there is no inherent right to the family home by a spouse who does not own part of the home. Until 2020, this was also the case in Alberta, as the division of family property was governed by the Matrimonial Property Act, which applied only to married couples. However, in 2020, the Family Property Act was enacted, ensuring that those in adult interdependent relationships would enjoy the same property rights as married spouses.

Both Acts define the family home and matrimonial home, in the same way. To qualify as a family or matrimonial home, the property must:

  • Be owned or leased by both spouses or adult interdependent partners;
  • Have been occupied by the spouses or adult interdependent partners as the family’s home; and
  • Be one of the following types of dwellings:
    • A house, or part of a house, that is a self-contained dwelling unit;
    • Part of a business premises being used as living accommodation;
    • A mobile home;
    • A residential unit as defined under the Condominium Property Act; or
    • A suite.

While in some provinces, a vacation property, such as a family cottage, may be considered to be a family home for the purposes of asset division, in Alberta this is not the case. These properties would be treated similarly to other assets, other than the family home when it comes time to divide the property between the spouses or adult interdependent partners.

Factors That Can Impact an Order for Exclusive Possession

When considering an application for an order for exclusive possession of the family home, a court must take a number of factors into consideration. This is not a decision to be taken lightly, as granting an order for exclusive possession can have a significant emotional and financial impact on the parties involved. Both the Matrimonial Property Act and the Family Property Act require a court to consider the following factors when making an order for exclusive possession:

  1. The availability of other accommodation that is within the financial means of both spouses or adult interdependent partners.
  2. The needs of any children living in the family or matrimonial home.
  3. The financial position of each spouse or adult interdependent partner.
  4. Any existing order made with respect to the property, or the support or maintenance of either spouse or adult interdependent partner.

Family Violence and Exclusive Possession of the Family Home

In some provinces, such as Ontario, family violence is a specifically enumerated consideration when making any family law decision. This is not the case under the provincial family property legislation in Alberta. However, if family violence is a concern, a spouse may seek an order for exclusive possession of the family home, whether it is owned or leased, under s. 2(3)(c) of the Family Violence Protection Act. An order under this Act can prevent a violent spouse from entering, or even coming within a certain distance, of the family home for a specified period of time, regardless of who owns the property.

In more urgent situations, a person who feels they are at risk of family violence may apply for an emergency protection order or a restraining order.

For Assistance with Family Home Matters during a Separation or Divorce, Contact the Family Lawyers at Mincher Koeman in Calgary

At Mincher Koeman, our family law lawyers have the experience and skill necessary to handle any matter involving the division of family property, including exclusive possession of the family home. We provide knowledgeable and candid advice to our clients, working to efficiently traverse the process of valuing and dividing shared property. We will always seek to provide a client with the most cost-effective method appropriate for their given situation. If you are getting divorced or separated and require the services of an effective family law lawyer for the fair division of your family property, contact our office to make an appointment to discuss your matter by calling us at 403-910-3000 or by contacting us online.

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707 7 Ave SW #1300,
Calgary, AB T2P 3H6

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