Exclusive Occupancy in BC: Can My Spouse Be Made to Move Out?

Separated spouses often keep living in the same home for weeks or months. When that becomes unworkable, the question is whether one of you can be required to leave before the property issues are settled.

British Columbia's Family Law Act gives the court two different tools for that. This guide explains what each order does, who can ask for it, and what the court will want to see.

Separation does not settle who stays

Separating does not change whose name is on title or on the lease, and it does not give either of you the right to shut the other out. BC's Family Law Act recognizes that spouses can be separated while still living under the same roof. For many couples that works for a while. For others, the tension, the effect on the children or the risk of harm makes it impossible.

If you cannot agree on who leaves, the Act offers two main court routes:

• an exclusive occupation order under section 90, which deals with the home while property issues are being resolved;
• a protection order under Part 9, which deals with safety where family violence is likely.

They have different tests and do different jobs, so it matters which one fits your situation.

Exclusive occupation under section 90

Section 90 lets the Supreme Court give one spouse, for a specified period of time, exclusive occupation of the family residence. The court can also give a spouse possession or use of specified personal property stored at the home, such as furniture, to the exclusion of the other spouse.

A few limits are built in:

• It is about the family residence. That means a home owned or leased by one or both spouses that is the spouses' ordinary place of residence.
• It is a Supreme Court order. Section 90 sits in Part 5 of the Act, and only the Supreme Court can make it.
• It is an interim tool. Orders under this part of the Act can be sought at any time before a final agreement or final order on property division is made.
• You must be spouses under Part 5. That covers married spouses and couples who have lived together in a marriage-like relationship for at least two continuous years. The alternative route to being a spouse, having a child together, does not apply to Part 5, so an unmarried couple together for less than two years may not be able to use section 90.

What the order does, and does not do

An exclusive occupation order decides who lives in the home for now. It does not decide who keeps it. Under section 90(3), the order does not:

• let the occupying spouse materially alter the home or the personal property;
• give the occupying spouse an ownership interest;
• create rights that outlast the other spouse's rights as owner or tenant, except as the court orders.

The court can, however, postpone the other spouse's right to apply for partition and sale, or to sell, transfer or mortgage the home, so that the order is not undermined by a sudden sale. The order can later be changed. Section 90 also preserves the right to file an entry under the Land (Spouse Protection) Act. Our article on the family home after separation explains that entry and how the home is eventually divided.

What a judge will want to see

Section 90 does not list the factors a judge must weigh, so the outcome turns on the evidence. The order removes a spouse from a home they may own or rent, so expect it to be opposed and expect the court to look closely at your reasons.

Applications usually address points such as:

• why living together is no longer workable, with specific dates and incidents rather than general statements;
• the effect of the conflict on the children, and their schooling, routines and care arrangements;
• each spouse's income and realistic options for other housing;
• who pays the mortgage or rent, taxes and utilities, and how that would work if one of you left;
• any health, disability or safety concerns.

Evidence is given by sworn affidavit. A careful, factual affidavit usually matters more than strong language.

When there is family violence: protection orders

If your safety, or a child's, is at risk, call 911 in an emergency. A protection order under Part 9 is a different remedy with a different test. A court can make one against a family member if it determines that family violence is likely to occur and the other family member is at risk.

A protection order can, among other things:

• restrain the person from attending at or entering your residence, even if they own it or have a right to possess it;
• restrain contact or communication;
• direct a police officer to remove the person from the residence, immediately or within a set time, or to supervise the collection of belongings.

In deciding whether to make the order, the court must consider risk factors set out in section 184, including any history of family violence, whether it is repetitive or escalating, patterns of coercive and controlling behaviour, and a recent separation or intention to separate. An application can be made without notice to the other person, and unless the court says otherwise, the order expires one year after it is made. Police can enforce it.

Steps to take before you apply

• Keep a record. Note dates, what happened and who saw it. Keep texts and emails.
• Gather the paperwork. Title or lease, mortgage statements and household bills help show who pays what.
• Consider an interim agreement. A written agreement about who stays, who pays and for how long can be faster and less costly than a court application, and it can be revisited later.
• Watch the bigger deadlines. An occupancy dispute often sits inside a property claim with its own time limits. Our first-steps checklist for separating in BC covers them.

Living with a spouse after separation? Find out which order fits

Our family lawyers can assess whether an exclusive occupation order or a protection order fits your situation, prepare the application and affidavit evidence, and negotiate an interim agreement about the home.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.