Pursuant to s. 90 of the Family Relations Act, the court can order that one spouse may have “exclusive occupation” of the family residence. The test applied by the court is two-fold: (i) first the applicant must prove that shared use of the family residence is “a practical impossibility”; and (ii) second the applicant must prove that he or she is the preferred occupant of the home on a balance of convenience.
In applying the test for exclusive occupation, the court may decide that the parties can share the family residence, even if sharing is uncomfortable or inconvenient. For example, in one case, the common-law wife gave evidence that it would be inconvenient to “move every six days” under the six-on/six-off nesting arrangement proposed by the husband, and that she was fearful that her ex-husband would leave a mess for her to clean up. The court found that the wife had failed to show that sharing was a practical impossibility – Hughes v. Erickson, 2014 BCSC 1952.
Where there are children, the principal factor in determining which party will have exclusive occupancy is the best interests of the children: Bateman v. Bateman, 2013 BCSC 2026. The court will consider a child’s need for stability, consistency and predictability: A. (C.E.) v. A. (B.E.) 2014 BCSC 1500. Other factors considered: a spouse’s ability to earn income, financial issues, and mental and physical health: Evans v. Mahtoy 2015 BCSC 2141.
The FLA has imposed an obligation on the court to consider family violence, and the presence of family violence will affect both occupancy and protection: E. (J.R.) v. 07—–8 B.C. Ltd., 2013 BCSC 2038. Particularly,
A party who is awarded exclusive occupation of the family residence may be required to be solely responsible for the expenses associated with that residence. See for example Kronlachner v. Kronlachner 2014 BCSC 2593. Sometimes the person who stays in the family home will be obligated to pay the other party occupational rent. In T. (M.) v. B. (C.J.) 2015 BCSC 1852, the common-law husband argued that the residence could produce rent of $4,000 to $5,000 per month. He wanted to be compensated for half the potential rent for one year. The common-law wife had made all the payments (mortgage, insurance, taxes and strata fees). The court found that the husband had been “removed” from the residence on the basis of a complaint against him to the police and that was a “consequence of his own misconduct.” He was not awarded occupational rent. Under the common-law, in order for one party to claim occupational rent from the residing party, the non-residing party had to have been “kicked out” or “ousted”. If there has been no ouster, the occupational rent can only be off-set from any claim made by the residing party that the non-residing party contribute to the expenses of the residence. In family cases, a claim for occupational rent can be made even without ouster. “Occupational rent is awarded where it is just and equitable to do so”: Stasiewski v. Stasiewski, 2007 BCCA 205. In that case, the wife was ordered to pay the husband $400 per month in occupational rent, calculated from the time she kicked him out. The amount of occupational rent will generally be calculated based on what the residence could be rented out for in the prevailing market. See for example Glueckler v. Glueckler 2014 BCSC 2128. In F. (J.S.) v. F. (W.W.) 2015 BCSC 2375, the court found that it would be “significantly unfair if no adjustment was made for the fact that the claimant has occupied the matrimonial home since separation, paying the mortgage from the joint line of credit, while the respondent was solely responsible for paying rent for his accommodation.” The wife was therefore ordered to compensate the husband $21,801, being his half of the mortgage payments ($1503.53 per month for 29 months). Similarly, in Kanizaj v. Krcmar 2016 BCSC 375 the court found that the non-residing spouse had paid the house-related expenses of approximately $2000 per month for 33 months, while the residing spouse paid nothing to live there. As such, half the payments, for a total of $33,000, was deducted from the spousal support the non-residing spouse had to pay.
If the matrimonial home must be sold in order to divide assets, the parties may agree, or the court may order, that the sale of the home is delayed until children are older. A delayed sale may be available where an immediate sale could force the children to adapt to a new setting or school during an otherwise difficult time in their lives, and/or create challenges for the primary parent. This is considered separately from the consideration of the need for financial independence of the spouse. Such an order may also be made as a reapportionment order pursuant to s. 95(3), for example, where a spousal support award fails to assist the recipient spouse to achieve economic self-sufficiency.