When separated spouses in Alberta can’t agree on who will stay in the family home, it may be necessary for one spouse to apply for exclusive possession of the property. Under the Alberta Matrimonial Property Act, now known as the Family Property Act, this kind of application is filed in the Court of King’s Bench.
What Is the Matrimonial Home?
In Alberta, the matrimonial home (now referred to as the family home) generally refers to the primary residence where spouses lived together before their separation. This can be a house, condo, or any other type of dwelling. Exclusive possession orders focus on who may stay in this residence on an interim or ongoing basis, regardless of whose name is on the title or lease. Exclusive possession is not limited to owned property. An order may also apply to a rented property where the spouses lived together.
What Happens When an Exclusive Possession Order is Granted
If granted exclusive possession by the Court, an order of exclusive possession may do several things:
- Give a spouse exclusive possession of the family home
- Allow a spouse to possess as much property surrounding the home as is necessary so that the spouse can use and enjoy the home
- Evict a spouse from the home
- Restrain a spouse from going into or being near the matrimonial home
What the Court Considers for an Exclusive Possession Order in Alberta
The Court will consider several factors before granting an exclusive possession order. If there are children living in the home, then the Court will consider how their needs may be affected by an exclusive possession order.
The Court will also consider the spouses’ individual financial situations and whether other viable accommodations are available for both spouses. If a court has already made an order regarding the property, then the Court will consider that order, as well as any spousal support being paid by one spouse to the other.
Note, too, that an exclusive possession order may take effect even if a court has ordered the sale of the home.
In addition to exclusive possession of the home, a spouse may apply for exclusive use of household goods.
The Family Property Act also allows a spouse to apply for a variation of an exclusive possession order.
How Kirk Montoute Dawson LLP Can Help With an Exclusive Possession Order
At Kirk Montoute Dawson LLP, our family lawyers provide clear guidance on the application process, help you understand what the court will consider, and advise on practical steps to protect your living arrangements. We work closely with you to navigate these challenges, offering informed support so you can focus on stability for yourself and your family.
To learn more about the division of matrimonial property in Alberta, please see Kirk Montoute Dawson LLP’s property division section.