primary residence; primary home; common law separation

Who Keeps The Primary Residence In Alberta?

Dealing With Primary Residences During Separation In Alberta

The term “Primary Residence” applies to the place that two people in a common law relationship live. This is different than a matrimonial home. A matrimonial home is the place where a married couple live. The following is information about primary residence division in the separation of a common law relationship in Alberta. For more information contact the lawyers at Kahane Law Office in Calgary. We canbe reached at 403-225-8810.

Who Gets The Primary Residence?

When parties separate the Primary residence is often one of the largest assets and the one to which parties have the greatest emotional attachment. The most frequent questions relating to who gets the primary residence are as follows:

Who Stays In The House?

Ideally the party who wishes to retain the primary residence and is in the best position to purchase the other out of their interest in the primary residence will remain in the home. This is a practical consideration as then there are fewer relocations done post-separation. An exception to this rule may be if there are children involved and if there is a joint desire to keep the children enrolled in a particular school pending the completion of a school year; so as to shelter the children from the impacts of the separation.

What Will Happen If Parties Cannot Agree Who Stays In The Primary Residence?

If the parties cannot agree on which party will say in the primary residence then one party may bring an application for Exclusive Possession of their home. This is when a court is asked to remove a party from the primary residence. This decision is governed by Sections 68 and 69 of the Family Law Act of Alberta. The Court’s decision is based on the following factors:

  • The financial situation of each of the common law partners (this includes capital, income and ongoing payments);
  • The needs of any children residing in the primary residence;
  • Availability of other places to live that are within the means of both parties;
  • Any other made by a court with respect to the property or the support or maintenance of one or both of the spouses.

Which Party Pays For The Primary Residence Once Someone Moves Out?

Generally the rule is that the person who is residing in the home is responsible for the day to day costs of the home. Of course a court can order other payment arrangements. The cost being paid by the person in the home is equitable because the person who moved out now must make payments for their own living expenses. Furthermore, the party remaining in the home is the one receiving the day-to-day benefit of living in the property.

If one party has little income and their are children from the common law relationship, then the general rule may change. If the children are living in the home with a parent who makes less or little money, then the party who moved out may have to help support the maintenance of the primary residence.

The courts may also rule for a different payment situation if both parties are on a mortgage and one party refuses to make payments.

Does Being the Registered Owner On Title Change Who Gets The Home?

Registered property ownership is not relevant to who stays in the primary residence. The party not on title may register a Certificate of Lis Pendens (“CLP”) on title to the primary residence. A CLP protects your interest in the home. The CLP keeps the party on title from refinancing or selling the property. There must be an action started in court to register a CLP.

What Payments Are Made To Maintain The Primary Residence?

Usually the party who stays in the primary residence can get half of the payments for the mortgage principle payments, half the property taxes and half of the costs for required maintenance and repairs from the party who moves out. The party who stays in the home will be required to cover the cost of mortgage interest and utilities. This is because the person who stays in the house is getting the benefit of it.

Getting More Legal Information

If you are going through a common law separation, you do not have to go through it alone. The lawyers at Kahane Law Office in Calgary, Alberta are here to help. Learn about your rights and obligations as they relate to your primary residence. Call Today. You can reach us directly in Calgary, Alberta at 403-225-8810 (toll-free at 1-877-225-8817), or email us directly here.