When a marriage or adult interdependent relationship breaks down and both parties are still under one roof, the question of who stays in the home can become urgent very quickly. Alberta’s Family Property Act gives the Court of King’s Bench the power to grant one spouse or adult interdependent partner exclusive possession of the family home, to direct that the other be evicted from it, and to restrain the other from entering or coming near it. The order can extend to the property around the home and to exclusive use of the household goods; it can be made on conditions and for whatever period the Court considers necessary, and it can be varied later. Since January 1, 2020, these remedies have been available to adult interdependent partners as well as married spouses.
In deciding an exclusive possession application, the Court must have regard to the availability of other accommodation within the means of both parties, the needs of any children living in the home, the financial position of each party, and any existing order about property or support. The Court of King’s Bench treats an exclusive possession application as urgent where there is a risk of violence or immediate harm to a party or a child, and the Family Property Act itself allows the order to be made without notice where there is a danger of injury to the applicant or to a child in the home because of the other party’s conduct. Where there has been family violence, exclusive occupation of the residence can also be granted as a term of an Emergency Protection Order or a King’s Bench Protection Order. The home does not have to be in the applicant’s name; a leased home is covered, and the spouse or partner given possession is treated as the tenant.
Keystone Legal brings and defends exclusive possession applications at the Calgary Courts Centre. The firm assembles the evidence on each of the statutory factors, including the children’s schooling and routines, each party’s income and the accommodation realistically available to each, and the conduct that makes continued cohabitation unsafe or untenable, and it brings, together with the possession application, whatever other orders the situation requires, such as interim parenting arrangements, interim support so that the mortgage and household costs continue to be paid, a preservation order where property is at risk and a protection order where there has been violence. When an order is granted for an owned home, the firm registers it with Land Titles so that the home cannot be sold or encumbered.
The practice is virtual, so meetings take place by video, telephone and email, with in-person meetings available on request in Cochrane or in Calgary. Advice is available in English or in French. Contested matters proceed at the Calgary Courts Centre, where counsel appears in person, and advisory and uncontested work is available anywhere in Alberta. If the situation at home cannot continue, call (587) 328-3328.
