What Are Exclusive Possession Orders?
Exclusive Possession Orders In Alberta
Exclusive Possession Orders are an order the Alberta Courts grant under the Family Property Act in Alberta. When there is a relationship breakdown, usually it is best if one of the parties moves out of the family home. Where the parties cannot agree who should move out, the Court decides who that will be. If you find you need an Exclusive Possession Order, call the family law lawyers at Kahane Law Office. Our Edmonton Office and our Calgary office help clients through most of Alberta when people need help dealing with their home.
What Are The Benefits Of Exclusive Possession Orders?
This type of order applies to all types of relationships. For example, it includes people who are separating, or unmarried couples who are Adult Interdependent Partners under the Adult Interdependent Relationships Act. Usually when spouses or Adult Interdependent Partners (“AIPs”) decide to separate they are still living in the same home. You can be legally separated while still living together, but usually it is best if one party moves out.
In “high conflict” matters, or even for a “regular” divorce or separation, when a spouse or partner will not move out of the house that can cause a lot of unnecessary stress. An Order for Exclusive Possession forces one of the spouses or partners to move out of the house. An Exclusive Possession Order can also deal with other property of the relationship.
In some circumstances, a spouse or partner can register the order on title of the home. They do this by submitting the appropriate documents for registration at the Land Titles Office. If the order deals with other property (such as a car, RV, or mobile home), the partner or spouse can register the order against title of that property by submitting the order in a financing statement to the Personal Property Securities Registry.
Once the spouse or partner moves out it is no longer their “residence”. This means they cannot come and go as they please. Further, they cannot enter the property without the other spouse or partner’s permission. It does not matter if their name is on title, or if they are paying the mortgage. If the Court grants exclusive possession to the other partner or spouse, they must respect that and immediately stop treating it as their own residence.
How Does This Affect Property Rights?
One main concern that may sometimes keep a spouse or partner from moving out of the family home when the relationship breaks down is because they are worried that they will lose rights to ownership of the property. The questions of who owns the property and who is living in the property are not actually necessarily related to each other. Whether or not someone lives in a home does not determine whether they own that home.
If a spouse or partner owns the home, but they move out because they have separated, this does not affect their ownership rights to the home. An Exclusive Possession Order does not determine who owns the home, it only determines who lives in the home.
As part of a separation or divorce the spouses or partners also want to separate themselves financially by dividing their property and debts. The Family Property Act is also the law that governs this process. If you are interested in learning more about property division, you should book an initial consultation with a lawyer. You can also read more about that here [LINK to another webpage?].
This Is Not A Restraining Order
In situations of family violence, an Emergency Protection Order (“EPO”) is appropriate. An EPO is a restraining order that is granted immediately by the Courts on an emergency basis and is generally enforced by the police or a peace officer. The punishments for breaching an EPO can be very serious. An EPO ensures the abuser cannot come in or near the home and cannot come near the other party.
An EPO is only appropriate in a situation where there is family violence. An Order for Exclusive Possession is not an EPO as it will not prohibit the spouses or partners from being in contact with each other. The court can order that the other spouse or partner cannot enter or attend at or near the home as part of the Order for Exclusive Possession, but in situations of family violence, the abused party should get an EPO.
How To Get Exclusive Possession Orders?
In order to get an Exclusive Possession Orders, a person must bring a court application. The Court of Queen’s Bench of Alberta is the level of court that hears these matters. You submit your evidence to court, and the other person will also have a chance to submit their evidence. The court will schedule a hearing, and at that hearing they will make a decision and issue an Order.
In making an Exclusive Possession Order, the court will consider the following:
- The availability of other accommodation within the means of spouses or AIPs;
- The needs of any children residing in the family home;
- The financial position of each of the spouses or AIPs; and lastly
- Any order made by a court with respect to the property or the support or maintenance of one or both of the spouses or AIPs.
Alberta Exclusive Possession Order Lawyers
Getting this type of an order involves several challenges. Consequently, be sure to consult a lawyer before you starting. The family law lawyers at Kahane Law Office in both Calgary and Edmonton help with this type of an application.
Some of our lawyers also offer legal services on a “limited scope” basis. This means they help you with as much or as little as you want. It is like an “a La Carte” service offering. This helps you save on legal fees if you feel comfortable doing some of the work yourself.
Call or email Kahane Law Office to book an initial consultation and get started if you reside in Alberta. In Calgary, please call 403-225-8810. In Edmonton, please call (780) 571-8463. For the fastest response, and for you to give us some details, please email us directly here.