Part I – Do I Stay Or Do I Go

November 1, 2011
Leisha Murphy

You have decided to separate.  Now what?  The next big decision after a couple decides to separate is who will remain in the family residence (with the kids if there are any) until the couple is able to disentangle their lives and ultimately, in the case of married couples, get a divorce.

Typically, at the early stages of separation, individuals base their decisions on emotion and impulse, instead of carefully considering all the relevant factors and the long-term impact of their decisions.  This is particularly relevant when individuals decide who will live where. Unfortunately, this decision is often made without any legal advice, which can create problems down the road.

Generally, the living arrangements of separated couples fall into four categories:

Neither party wants to leave.  Both stay in the family residence and often end up in court arguing over exclusive occupation of the family residence until a decision at trial or settlement.One party leaves based on emotion – often guilt or anger.  Usually this couple will not have children, or the children will be adults.The parent who primarily cares for the children stays, and the other parent finds rental accommodation until the couple figures out what they are going to do with the family residence (i.e. sell the property or one party buys the other party’s interest in the property).The primary caregiver of the children decides to leave because s/he feels there is a threat to their safety or the child’s safety (usually there is some history of abuse in this scenario).

This blog post will address the first category and provide some considerations each party should think about before making a decision.  Next month’s blog post will address the remaining categories.

Nobody wants to leave

This category is exemplified in the recent decision of Ingram v. Ingram, 2011 BCSC 1318.  Neither party wanted to leave the home; the husband operated his Internet business from the home and the wife hoped to buy out the husband’s interest in the property.  The Ingrams’ daughter was 17 at the time and decided to leave the home to live with her older sister.

Ten months after the parties had separated, but remained living in the home together, the wife brought an application pursuant to section 124 of the Family Relations Act for interim exclusive occupation of the home.  To be successful, she had to demonstrate:

It must be practically impossible for the couple to have shared use of the family residence; andThe wife would be the preferred occupant of the family residence.

During the application, both the husband and wife presented evidence showing that it was practically impossible for them to live together.  Reminiscent of the movie “The Break-Up”, the wife accused the husband of leaving anti-freeze out in an attempt to kill her dog; rolling a pool ball along the floor at night to keep her awake; refusing to remove marijuana plants that he was growing in the backyard; roundhouse kicking a glass out of her hand; and purposely leaving a women’s phone number and name written on a piece of paper on the floor for her to see.

The husband accused the wife of making dinner for a computer handyman that spent hours at their house and then only charged for one hour of his time; vandalizing his truck in the garage; and storming into his room and verbally assaulting him.  The verbal assault subsided, according to the husband, once the wife reduced her alcohol consumption.

Although this situation appears to demonstrate that it was practically impossible for the parties to live together, the judge was unable to determine the truth of the allegations since both individuals denied the other person’s allegations.  As a result, the judge dismissed the wife’s application for exclusive occupation of the home.

It is worth noting that, had the husband made his own application for exclusive occupancy, the judge would have awarded it to him based on his home-based business.  Since the husband did not seek exclusive occupation, both parties were permitted to remain in the home.

This decision indicates that the test of “practical impossibility of living together” is a high threshold to meet, and unless there is a situation that is clearly abusive to one party or the children, a “War of the Roses” situation will not likely result in an Order for exclusive occupation.

The decision of Ingram also demonstrates that even where one party seeks to buy out the other individual’s interest in the property, this may not be sufficient to tip the balance in their favour to exclusively occupy the home.

Things to Think About

If both individuals plan to stay in the home, discuss a game plan:

1) Who will live where – can you live in different parts of the family home limiting your interaction;

2) Can you both manage to live in the home for an extended period of time (perhaps several years) – you may think you can save money by remaining in the same home, but a court application down the road, as in the case of Ingram v. Ingram, can cost between $5,000 – $15,000 in legal fees, so it is better to realistically assess whether you can in fact live together after separation;

3) Who will take care of what expenses – now that you have separated you may need to discuss what your new financial reality will look like as individuals; and

4) Will one spouse compensate the other spouse for certain expenses once a settlement is reached.

Leisha Murphy
Leisha Murphy
Partner (Vancouver)
Connect Family Law

Leisha takes a heart-forward approach to her practice. Providing clients with guidance and education, she takes a “big picture” view , assessing the long-term impacts of decisions to ensure the best possible outcome for you and your family.