Who gets to stay in the family home after separation in British Columbia?

Exclusive occupation

Section 90 of the Family Law Act lets the Supreme Court give one spouse exclusive occupation of the family residence for a specified period, and the use of furniture and other belongings kept there. The family residence is the home the spouses ordinarily live in, whether one of them or both own or rent it.

The order is temporary. It does not change who owns the home or give the spouse who stays any ownership interest, and it does not allow major alterations. While it is in place the court can postpone a sale of the home. Only the Supreme Court can make this order.

When the court grants exclusive occupation

The Act does not say when the order should be made. The test comes from decisions of the Supreme Court. The spouse who applies must show two things: that sharing the home is a practical impossibility, and that on the balance of convenience he or she is the preferred occupant. A practical impossibility is a situation that is intolerable or unacceptable when looked at objectively. The longer the spouses have gone on living under one roof since they separated, the harder that is to show.

For the balance of convenience the court weighs the disadvantage to each spouse of making the order or refusing it. It looks at any delay or acquiescence, how each spouse has behaved, each one's finances, what other accommodation each could find, and other circumstances such as health. Where there are children, their best interests are the court's primary consideration, and a household so tense that the children's best interests are not being met will generally satisfy the first part of the test.

Where there is family violence

A protection order under Part 9 of the Act can restrain a person from attending or entering the home, even if that person owns it or has a right to possess it. It can direct the police to remove the person at once or within a set time, and to stand by while belongings are collected. Either the Provincial Court or the Supreme Court can make it, and it can be made without notice in an urgent case.

Paying for the home in the meantime

A court can order a party to pay the rent or mortgage, utilities, taxes, insurance and other expenses of a residence, and can forbid a party from cutting off the utilities. On a spouse's application the Supreme Court must also restrain the other spouse from disposing of property that is at issue in the case, unless that spouse shows the claim will not be harmed.

Moving out does not give up your share

On separation each spouse has a right to an undivided half interest in all family property, whatever each contributed and whoever used it. Leaving the home does not change that. Who lives in the home for now and who ends up with it, or with its value, are separate questions.

Who counts as a spouse

These property rules apply to married spouses and to people who have lived together in a marriage-like relationship for at least two years. A couple who lived together for less than two years are not spouses for property division, so section 90 does not apply to them, though a protection order is open to any family member.