What will the Court consider before making an exclusive possession order?

On behalf of Gary Kirk of Kirk Montoute LLP posted in High Asset Divorce on Sunday, March 22, 2015.

When separated spouses in Alberta can’t agree on who will stay in the matrimonial home, it may be necessary for one spouse to apply for exclusive possession of the property. Under the Alberta Matrimonial Property Act, this kind of application is filed in the Court of Queen’s Bench.

If granted by the Court, an order of exclusive possession may do several things:

  • Give a spouse exclusive possession of the home
  • Allow a spouse to possess as much property surrounding the home as is necessary 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 home

However, the Court will consider a number of 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 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 Matrimonial Property Act of Alberta also allows for a spouse to apply for a variation of an exclusive possession order.

To learn more about the division of matrimonial property in Alberta, please see Kirk Montoute LLP’s property division section.

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