Who Gets To Live In The House On Separation?
Matrimonial Home
An Order for Exclusive Possession or exclusive possession order is an order by the court in Alberta that allows one party to have exclusive use of a couples primary residence or matrimonial home. Any type of regular dwelling may be a matrimonial home including a house, a mobile home or trailer, a condo or apartment or even part of a house. The couple may own the property or they may be leasing it. The property being applied for must be in Alberta. The Matrimonial Property Act governs these orders when married couples separate. The Family Law Act governs these orders for common law couples. Kahane Law Office in Calgary, Alberta can help when you need it.
What Does An Exclusive Possession Order Do?
An exclusive possession order, in Alberta, is able to be broad or very specific.
There are times where an exclusive possession order is only needed to officially allow one party in a marital or relationship breakdown, to live in their home without the other spouse. The order can specific a specific time frame or a more permanent time for possession free of the other spouse. One spouse has exclusive possession of the matrimonial home. The order can also specify that the other spouse is evicted from the home. It can set specific dates for the eviction and even limit that person’s ability to access areas outside the home. During the time of the exclusive possession order, the home may not be unilaterally sold or encumbered. Further orders will be needed for that.Factors Courts Look At For Exclusive Possession Of Matrimonial Homes
One of the first things that a court will look at is each spouses’ individual situation when it comes to finances. They will look to see if each party can afford their own home or is there a need for an order to sell the matrimonial home. The court will also look at any spouse support payments being made. Further, if there are children involved, the court will look at what is in the best interest of the child(ren). The court will also look at such things as if the spouse being excluded has a place to move or the finances to get one, any custody arrangements previously ordered and for which party it is more convenient to move.
Does An Order For Exclusive Possession Act As A Restraining Order?
An exclusive possession order is not the same as a restraining order or emergency protection order. Those orders are for people who are in physical danger form the ir spouse and need to ensure that they do not get into close proximity of one another. An exclusive possession order only allows for exclusive use of a home (and sometimes surrounding area). An emergency protection order or restraining order keeps a person away from another person no matter where they are.
What Is The Process?
Typically, the first step is to make an application to the court. Usually, the spouse who is being excluded from the home has to be served with notice of the hearing. If there is any danger of violence or a need to rush the application, the court can dispense with the requirement for the initial notice. In this case, the court grants the Oder for Exclusive Possession. Note that the order often includes a return date so that both parties can be heard by the court before the court grants a more permanent order. In the application, exclusive possession of the household goods is usually often also requested.
Do You Need An Exclusive Possession Order?
The family law lawyers at Kahane Law Office in Calgary, Alberta can help. Whether you need exclusive possession of your home or if you have been served with such an order and want to make a claim for you to get exclusive possession, we can help. Call us today at 403-225-8810, or email us directly here.