Who Gets to Stay at the Family Home? Exclusive Occupancy of the Family Home

What is Exclusive Occupancy of the Family Home?

Exclusive occupancy of the family home means who gets to stay in it after separation to the exclusion of the other house. This is usually a very contentious issue in any family law situation. In short, the spouse who has care of the children most of the time will be the preferred person to stay at the home. If no children are involved, the court will look at who will be most inconvenienced by leaving the family home. Let’s look at the concept and the consequences:

The family home is where you, your spouse and maybe your children resided. Leaving it or staying in it after separation is a very important issue you should consider. It brings a lot of consequences with it too.

Exclusive Occupancy of the Family Home – The concept

If you want to stay in the family home and you want your spouse to leave it after separation, you may have problems. Your spouse may want to stay in the family home instead of you, or he/she may ask to stay in the family home with you despite separation. These situations are very common especially when you and your spouse own the home and not just rent it.

In cases where children are involved, the courts will try as hard as they can to make sure the children are not disrupted. So they may allow both parents to stay at the home despite the separation. This can be very inconvenient and stressful for the spouses, but they are expected to work it out for the sake of their children. But if they can’t, then they need to apply to the Court for exclusive occupancy of the family home.

In cases where there are no children involved, it is easier to get one spouse out of the home. But if you and your spouse own the home together and need to pay the mortgage, you need to propose a workable and affordable situation to the judge to order one of you out. If neither one of you can afford the mortgage on the family on your own, then it may be impossible to get an order for exclusive occupancy of the family home. In these cases, you may need to ask for an order for the sale of the home and ask to stay in the home until the home is sold.

Exclusive Occupancy of the Family Home – Consequences

There are some important consequences arising from the exclusive occupancy of the family home. For example:

• If you do not live in the family home after separation but you keep on paying the mortgage on it while your ex lives there, what happens to all the mortgage payments you made? Should your spouse reimburse you or should you get the value of all the appreciation on it after separation since you made all the contributions?
• If you live in the house and your ex moved out but you pay the mortgage after separation for two years, should your spouse benefit from the appreciation in the value of the home after separation?
• If you contributed to the mortgage of the home while your ex lived there, should she/he pay you for half the expenses if she/he wants half of its value?
• What if you pay for all the utilities of the home while your ex lives there? Should she/he pay them back?
• What if you and your ex separate many years ago and you keep on living in the home. Does your ex get half of its value after so many years despite not living there or contributing to it?

You’ll be surprised to know that there are cases both in favour and against all the options above. That is why the law is always evolving and never black and white. And why all situations are assessed based on their specific facts. That’s why we have conflicting cases on the same point of law. The difference between winning and losing each of the options above is how well your family lawyer represents your case and how well he/she tells you about all the risks and chances of success or loss.

To read one of the latest court successes on the exclusive occupancy of the family homer, click here.

I promise I will write more on how to argue each of the above options given your situation but trust me this is a complicated area of family law. There are many cases and strategies at play and it will take a little while to write them down on paper given so many conflicting cases. But I will do that. And when I do, I will be sure to update you on them.

Until then, know that you can’t win your family law case based on blogs. In this stage of life, you need a professional to protect you not Google. I can give you basic information but you will lose your case if you do not know how to argue it and know its strengths and weaknesses of it. You need to at least consult with a family lawyer, even if that lawyer is not us, to make sure you do not lose fortunes after separation.

It is always best to at least consult with a BC Family Lawyer, to learn the strategies relating to your case and how to make sure you win it in court or negotiations. To contact our award-winning lawyers for a consult, call 604-974-9529 or get in touch.