During the emotional and practical challenges of separation, divorce, or family violence, an exclusive possession order may be essential to protect you and your family’s stability and security in a time of uncertainty. Exclusive possession orders are court orders that lay out who has the right to remain in the family home when disagreements or conflicts arise.

Whether it’s to create a safe living environment, maintain consistency for children, or establish temporary arrangements while larger issues like property division are resolved, exclusive possession orders play a vital role in offering immediate and practical solutions for individuals going through family law challenges. Discover how Alberta courts can support you during this pivotal moment, or get in touch with our family law firm to start the process of applying for an exclusive possession order or contest one today.

    

What Is the Meaning of Exclusive Possession?

In family law, exclusive possession refers to the legal right granted to an individual to occupy and control a specific property, such as a family property or home, to the exclusion of others. This means that the person who is granted exclusive possession has the authority to decide who can enter, stay, or use the property. In contrast, others, including co-owners or co-occupants, are restricted from doing so without permission.

The individual with exclusive possession has the right to use and enjoy the property as they see fit, within the bounds of the law. They can exclude others, including a spouse, partner, or family member, from accessing the property. In some cases, they may also be granted exclusive possession of the family vehicle, pets, or household goods.

However, exclusive use does not alter legal ownership of the property. For example, if one party owns the home, the exclusive possession order allows the other party to live there temporarily, but it does not transfer ownership rights. Final decisions about property ownership are typically made during the division of a matrimonial home or family property under the Matrimonial Property Act or the Family Property Act.

The party in possession can typically make minor changes or adjustments necessary for day-to-day living, such as redecorating, painting walls, rearranging furniture, or household goods. They are not, however, entitled to make structural changes, renovations, or other significant alterations without the consent of the property’s legal owner or a court order.

Exclusive possession is legally enforceable, meaning any violation by the excluded party, such as attempting to enter the property without permission, can lead to legal consequences. If someone enters the property without permission or refuses to leave, it may constitute trespassing, harassment, or breaching a court order.

The court can impose fines, additional restrictions, or jail time for persistent violations. In addition, non-compliance may negatively affect the violator’s position in related legal proceedings, such as property division or child custody cases.

Who Can Get an Exclusive Possession Order

In Alberta, an exclusive possession order can be granted by the courts in various situations, however the most common are those arising from family law disputes. These include instances of separation and divorce amongst married couples or adult interdependent partners, or in cases of family violence.

Separation or Divorce

When spouses or common-law partners cannot agree on who should remain in the family home, the court may grant one party exclusive rights to occupy the residence. This decision aims to ensure a fair and peaceful resolution while long-term issues such as property division or financial arrangements are addressed.

In making this determination, the court carefully considers the unique circumstances of the case, especially taking into consideration the needs of any children involved. Courts prioritize the best interests of children, recognizing that maintaining stability during a period of upheaval is critical for their well-being. Allowing children to remain in a familiar and consistent environment, such as the family home, can help minimize the stress and disruption caused by a separation.

However, these orders are not only applicable to cases with children. If ongoing conflict or tension makes cohabitation untenable, or if one party cannot reasonably secure alternative accommodations due to their financial position, the court may grant an exclusive possession order to temporarily allow them to remain in the matrimonial home.

Protection from Family Violence

Exclusive possession orders are a critical legal tool in situations involving domestic violence, as well. In many cases, these orders are sought alongside a restraining order or Emergency Protection Order (EPO) and granted immediately to provide additional safeguards and protection to vulnerable individuals and their children.

These orders are enforceable by law, under the Family Violence Act, meaning that any violation by the excluded party can result in legal consequences. By granting one individual exclusive rights to occupy the home and requiring the offender to vacate and find other accommodation, these orders aim to ensure that the family home becomes a safe space free from ongoing conflict or intimidation.

Who Gets to Stay In the House During Separation in Alberta?

In Alberta, who gets to stay in the house during separation depends on many factors. If one partner owns the home, they generally have the right to remain. Still, the non-owner may request an exclusive possession order if there are compelling reasons, such as safety concerns or the best interests of children living there. In cases where the home is jointly owned, both parties have equal rights to occupy the property unless they reach an agreement or a court decides otherwise.

The presence of children plays a significant role in determining who stays in the family home. Courts prioritize the best interests of the children, whether out of marriage or in adult interdependent relationships, focusing on maintaining stability and continuity in their lives. In some cases, separating couples voluntarily decide who stays in the family home through mutual agreement, often documented in a separation agreement to prevent future disputes. However, when both parties want to remain in the home and cannot agree, the court steps in, considering factors such as ownership, financial contributions, spousal support payments, safety, and the best interests of any children involved.

If one spouse finds themself in a position where they disagree with the order, it is in their best interests to comply with any responsibilities related things like child support or spousal support while they seek legal services.

At any time, the court may revisit an exclusive possession order if circumstances change, such as a resolution of financial disputes, the end of domestic safety concerns, or the sale of the home.

Finding Resolution

Whether you are seeking to stay in your home during a separation or need to assert your rights to fair access, navigating these situations can be complex and emotionally challenging. At DLegal Law Office, our experienced Calgary family lawyers are here to provide clear, compassionate, and effective legal guidance.

Consulting a family lawyer ensures your application is prepared correctly and strengthens your case. Reach out today to get started.

The content of this article is intended to provide a general guide to the subject matter and should not be considered legal or other professional advice. Please discuss your situation with a lawyer or other professional to get detailed information regarding your specific circumstances. Refer to our Terms of Use for more details.