Introduction

In family law, the concept of exclusive occupancy often arises during the separation or divorce process. Exclusive occupancy refers to the legal right granted to one spouse to live in the family home to the exclusion of the other spouse. This blog post aims to provide a detailed explanation of exclusive occupancy, its legal basis, the criteria for granting it, and its implications for both parties involved.

What is Exclusive Occupancy?

Exclusive occupancy is a legal order that allows one spouse to reside in the family home while the other spouse is excluded from the property. This order can be temporary or permanent, depending on the circumstances of the case. The primary purpose of exclusive occupancy is to provide stability and security for the spouse who remains in the home, especially if there are children involved.

Legal Basis for Exclusive Occupancy

In British Columbia, Section 91 of the Family Law Act governs the granting of exclusive occupancy orders. Section 9 of the FLA allows the court to make an order for exclusive occupancy of a family residence. The court may grant exclusive occupancy to one spouse for a specified period, along with possession or use of specified personal property stored at the family residence.

Criteria for Granting Exclusive Occupancy

The court considers several factors when deciding whether to grant an exclusive occupancy order. One of the leading cases on exclusive occupancy is the Supreme Court of British Columbia decision of Bateman v. Bateman, 2013 BCSC 2026.

At paragraph 44, the Court said that an applicant seeking an order for exclusive occupancy must establish the shared use of the family home is a practical impossibility and that they are the preferred occupant of the premises on the balance of convenience.

Under the first part of the test, that shared use a practical impossibility, the court has said that there there must be something more than the parties simply having differences and not wanting to live together. There must be something which makes the situation intolerable or unacceptable in an objective sense. 

Under the second part of the test, the court assesses which spouse is the preferred occupant of the home based on a balance of convenience. This is an objective test. The court considers the following, non-exhaustive list of factors: (a) any acquiescence or delay, (b) the conduct of the parties, (c) the economic position of the parties, (d) alternate living accommodation available to either of the parties and (e) other relevant circumstances such as health. 

While family violence is not a precondition for exclusive occupancy, the FLA requires the court to give greater weight and significance to any violence that has occurred. If family violence is present, it will be factored into the decision, and more often than not, this will lead to the court granting the application for exclusive occupancy.

If there are children involved, the court will prioritize their best interests. This includes considering the children’s need for stability and continuity in their living arrangements. The best interests of the children are an overarching principle ever present in family law proceedings.

In J. (S.) v. S. (T.G.), 2008 BCSC 549, the court found that where continued shared occupancy of the family residence by both spouses would be damaging to the children this may support an exclusive occupancy order where the applicant’s evidence of stress did not meet the practical impossibility test, but evidence that the children were caught in the middle of the dispute supported the need for an exclusive occupancy order. 

Implications of Exclusive Occupancy

Exclusive occupancy orders have significant implications for both parties:

For the Occupant: The spouse granted exclusive occupancy gains the right to live in the family home without interference from the other spouse. This can provide a sense of stability and security, especially if there are children involved.

For the Excluded Spouse: The excluded spouse must find alternative accommodation, which can be challenging and costly. Additionally, they may still be responsible for mortgage payments or other expenses related to the family home.

Mortgage and Housing Costs: The spouse granted exclusive occupancy may be responsible for the mortgage payments and other housing costs, such as property taxes, insurance, and maintenance. However, the court may also order the excluded spouse to contribute to these expenses, depending on the financial circumstances of both parties.

Spousal Support: Exclusive occupancy can impact spousal support arrangements. The court may consider the financial burden of maintaining the family home when determining the amount and duration of spousal support. The spouse granted exclusive occupancy may receive additional support to cover housing costs, or the excluded spouse may receive a reduction in support obligations if they are contributing to the mortgage or other expenses.

Financial Hardship: Both parties may experience financial hardship as a result of exclusive occupancy. The excluded spouse may need to find and pay for alternative accommodation, while the occupant may struggle to cover the costs of maintaining the family home. The court aims to balance these financial burdens and ensure a fair outcome for both parties.

How to Apply for Exclusive Occupancy

Only the Supreme Court of British Columbia has the jurisdiction to make an order for exclusive occupancy. You cannot apply for order for exclusive occupancy of the family residence at the Provincial Court of British Columbia.

In order to make an application for exclusive occupancy at the Supreme Court of BC, you must file a Notice of Application in Form 31. You must include an affidavit setting out the factual basis in support of your application. The affidavit must address why shared use of the family residence is impractical and why you as the applicant are the preferred occupancy of the family residence. The court will want to know your financial circumstances. So, it may be prudent to also include a completed financial statement in form 8.

You can download these court forms from the Supreme Court Website here.

If you want guidance on how to draft an effective affidavit, see our blog post: Tips for Drafting Affidavits in Family Law.

Conclusion

Exclusive occupancy is a crucial aspect of family law that aims to provide stability and security for one spouse during the separation or divorce process. Understanding the legal basis, criteria, and implications of exclusive occupancy can help individuals navigate this complex area of law. If you are facing a situation where exclusive occupancy may be necessary, it is essential to seek legal advice to understand your rights and options.