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Should you stay or should you go? 

Which spouse stays in the house?

Letters from doctors, counselors, psychologists, and the like are very useful in assessing whether the “practically impossible” test has been met.

Assuming that the first test is met the second hurdle is usually very easy for the Court to address. If there are children, the parent with day-to-day care of the child/children is generally the favoured occupant for the matrimonial home. Generally speaking the Courts find it is easier for the non day-to-day care providing parent to move into alternate housing leaving the day-to-day care provider the interim use of the home for himself or herself with the children. It comes down to what is best for the children in terms of access to schools, daycare, activities, friends, fenced back yards, family pets, and limitless other variables which generally favour the day-to-day care providing parent.

In the absence of physical abuse or assault, parties are generally well advised to stay in the former matrimonial home until a Court otherwise orders or until such time as a Separation Agreement has been concluded. Moving out without a Court Order or a Separation Agreement generally is not to the moving out party’s advantage. Simply put, if the spouse that is occupying the house has the enjoyment of what is often the biggest asset, doesn’t have to move, doesn’t have to pay the other owning spouse his or her share of the equity in the home, delay is on the occupying spouse’s side. He or she may be motivated to delay Court proceedings or negotiations in order to maximize the time he or she is enjoying exclusive occupancy.

If, you are facing a dispute as to who should be allowed to occupy the house you are well advised to seek independent legal advice as soon as possible. Delay or failure to be properly advised as to your legal rights and entitlements often leads to complications later on and complications increase the legal costs for both sides.

Information provided by

R. Dean Oliphant, Law Corporation

Barristor and Solicitor

VINING SENINI

An Association of Lawyers and Law Corporations

Nanaimo, British Columbia

Canada

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