After separation it is difficult for spouses to remain the same residence in most cases.
While it is usually much quicker and cheaper to resolve the matter of who is going to live where by agreement, in British Columbia, if spouses cannot come to an agreement about who is going to remain in the family residence (and who is going to leave) the spouse who wishes to stay in the residence (without the company of their estranged spouse) can bring a court application to for interim exclusive occupancy.
The Family Relations Act sets out that one spouse can seek a court order for interim exclusive occupancy of the family residence. To be successful the spouse seeking exclusive occupancy need to show:
- shared use of the home is a practical impossibility; and
- on the balance of convenience the they are the preferred occupant.
A question arises – what is a practical impossibility? Practical impossibility could mean many things – for example, I consider a day without coffee a practical impossibility.
The courts have considered different circumstances that spouses have alleged create a practical impossibility leading to that spouse being awarded interim exclusive occupancy of the family residence.
- growing marijuana;
- leaving a women’s phone number by the bed;
- leaving antifreeze in a place the wife’s dog could have consumed it;
- making noise at night;
- violating privacy by trying to access a personal computer and going into the wife’s room;
- engaging in violence against the wife;
The court found that if the main allegations were proved it could have been easily concluded that there was a practical impossibility but, given the conflicting evidence, such a conclusion could not be made.
In another case, the court found that the wife’s evidence of health problems caused by remaining in the same house as her husband did not establish a practical impossibility, however, the court had an obligation under the Divorce Act the Family Relations Act and the Law of Equity Act to consider the best interests of the children. It was found by the court that the impact of the parties disagreements on the children made it a practical impossibility for the parties to remain in the same home.
The Court has decided that it is the burden of the spouse claiming exclusive occupancy to prove the practical impossibility. Once a practical impossibility is established, the Court is to consider the balance of convenience.