The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This topic discusses the Court Order for the Exclusive Possession of your Home. A request to the Court can be made at the same time that you appear in Court on other family matters. The application is made under the Matrimonial Property Act.
You may ask for the Court Order for Exclusive Possession when your marriage breaks down and you and your spouse cannot tolerably live together any longer. The Court can order your spouse evicted from the home and restrained from entering or coming near the home. Ask the Court to include other necessities in the Order such as the possession of certain household goods and vehicles you require for yourself and the children.
It does not matter whose name is on title, the home can be in the name of one spouse solely or both your names. You can ask for an Order even if you are in a rental accommodation. If you rent your home, you will be deemed the tenant for the purposes of the lease.
If there is a danger of injury to you and your children from your spouse, the Court may waive the requirement that your spouse be served with notice of the initial application. Your spouse will not be notified of that first Court appearance but will be served with the Order for Excusive Possession and have an opportunity to respond at another Court date.
The Judge will issue the Exclusive Home Possession Order for a fixed period of time depending upon your circumstances. It is a temporary remedy and does not mean that in the end, the home will not be sold and the equity divided equally. For example, the Court may give the Order until the children finish the current school year or until after the divorce trial. After trial, the Court will issue a final Order to deal with all property.
The Court will consider the following matters before it makes an Exclusive Possession of Home Order:
- What is the financial position of you and your spouse?
- Are the children’s needs addressed?
- Is there a Court Order made for support of you or your children?
- Is there a Court Order for the custody of the children?
- Is it more convenient for the custodial parent to move, or should the other parent move?
- Is there a Court Order for spousal support?
- Is there a Court Order for the distribution of the matrimonial property?
- Is there is a place for your spouse to move to?
- Can your spouse afford to rent or buy another place?
The right to an Exclusive Possession of the Home Order is provided in the Matrimonial Property Act. It is a right that cannot be contracted out in a written contract made between you and your spouse. The right to ask the Courts for Exclusive Possession of the matrimonial home from the Court will always be available to either spouse.
The interest of both husband and wife in the ownership of the matrimonial home is protected during the time that the Order for Exclusive Possession is in place. Neither spouse may sell or encumber the home without the written consent of the other. Registration of the Exclusive Possession of Home Order and/or Certificate of Lis Pendens against title to the home should be made to protect your interests. You should discuss this with your lawyer.