Divorce? Get out of my house!

In the wake of Valentine's Day, I thought I would write a column about family law. Ironic, I know…

This column’s topic isn't exactly pleasant or in the spirit of Valentine's Day, but it is useful information. If not for you, then for someone you know...

So, here it is: ever wonder what happens to the family home when a couple separates? Who gets to live in it? Do both partners have to share it?

After a marriage or a common-law relationship ends, both parties probably don’t want to continue living together, right?  So, what happens?

Well, the Family Law Act in BC (section 90) allows a judge to give one partner exclusive occupancy of the family home.

But, how does a person get that?  Well, the person who wants to have exclusive use of the home has to go to court and show the judge two things:

  1. That it is practically impossible for the two people to live together in the same home; and

  2. That it is more convenient for the person applying to court to stay in the home as the occupant (vs. the other partner staying in the home).

So, what is does all this mean? What exactly makes living with your ex-partner ‘practically impossible’? 

As you can imagine, what makes living together ‘impossible’ can vary from person to person.  Some people would find that just seeing your ex-partner would be impossible…  But, that isn’t good enough...

So, what makes it impossible to live with the other person?  Well, the following factors have been used to show that it is impossible for two former partners to continue living together: 

  1. Yelling and arguing;
  2. Belittling the other person;
  3. Growing marijuana;
  4. Playing loud music, disturbing the other spouse and children;
  5. Leaving anti-freeze out where the former partner's dog could drink it;
  6. Continuously leaving the doors of the home unlocked when the other partner is home alone; and
  7. Physical violence.  

The more ‘bad conduct’ that a former spouse displays, the easier it will be to convince a judge that the other spouse must ‘get out’.

So, for example, one incident of physical abuse would probably be enough to have the other person ‘kicked out’.

But, the opposite also applies…

So, a few incidents of your former spouse playing loud music will not likely get your former spouse ‘kicked out’. Instead, if that was all your evidence, the judge would likely not appreciate your use of court time… And, your application to get your partner ‘kicked out’ would fail.

Now, this is only the first step...

Next, you need to show that, of the two of you, YOU are person who should remain in the home. This is referred to, in legal circles, as the ‘balance of convenience test’.

Here, the court will consider several factors, including whether one partner earns significantly more money than other partner, allowing one partner to have more ‘options’ in finding alternative housing. Here, the ‘richer’ partner (who can afford to pay rent elsewhere) may be forced to ‘get out’.

The court will also consider which partner is the primary caregiver to the children.

For instance, if a stay-at-home father is the primary caregiver to the children, the court would more likely allow the father to stay in the home.

Imagine the opposite: if the father was ‘kicked out’, the children would be forced to leave the home (to stay with the father) or they would be in the care of the go-to-work mother who isn’t home often enough to care for the children. The court doesn’t want to disrupt the lives of children, so that’s why the father would have exclusive use of the home after the separation.

These court applications should not be taken lightly; they can be lengthy, bitter, and expensive. So, if possible, try to resolve your issues with your former partner amicably.


**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

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About the Author

Jeff Zilkowsky is a lawyer practicing at MacLean Law in the Lower Mainland and in Kelowna, and focuses his practice on family law and litigation.  

In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 

The information contained in Jeff’s column should not be used or relied upon as legal advice.

Comments are always appreciated and encouraged, so don’t hesitate to email Jeff at [email protected]

Visit Jeff’s website at www.jeffzilkowsky.com or visit the website of MacLean Law.

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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