This blog post is Part II to my last post: Do I stay or Do I go: Who Should Occupy the Family Residence After Separation. In this post I will be addressing the remaining categories of who should occupy the family home upon separation, namely:
2) One party leaves based on emotion – often guilt or anger. Usually this couple will not have children, or the children will be adults.
3) 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).
4) 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).
Category 2: One Person Stays and the Other Goes – No kids
If you are the person who stays, you may want to consider the following:
- If you pay for the operation of the family residence after separation, you may be able to recoup some of this cost through an unequal division of the property, if these costs are significantly higher than what your spouse paid to live in alternative accommodation.
- At the same time, you can also be ordered to pay occupational rent, which is a notional rental price for continuing to enjoy the use of the family residence, while the other party has been denied the benefit of its use. The order must take into account the relative contributions of each party to the maintenance of the property (Stasiewski v. Stasiewski, 2007 BCCA 205). Occupational rent usually comes into play when the party occupying the family home has “ousted” the other party or forced them to leave.
- See also Stojanovic v. Stojanovic (1994), 7 R.F.L. (4th) 83 (B.C.C.A.), where the court held that, although the husband had paid all costs of maintaining the home between the divorce in 1986 and the trial in 1991, the wife was entitled to one-half of the (much increased) value of the home at the date of trial, because the husband’s contributions were balanced by his exclusive use of the property “rent free”. A similar finding was made in Jorgensen v. Jorgensen (1998), 110 B.C.A.C. 75 (C.A.).
If you are the spouse who left, you may want to consider:
- That once you have left, it is difficult to get back on the property and you may resent living in rental accommodation.
- You may need to leave to preserve your sanity, in which case, you should discuss with your spouse how the bills will be paid until you both can agree on what will happen to the home in the future.
Category 3 and 4: One Person Stays the Other Goes – Kids
If you are occupying the family residence with the kids, you may want to consider:
- A claim for occupational rent by your spouse may fail if you are occupying the home for the benefit of the children (see:Barker v. Barker, 2000 BCSC 305, varied 2002 BCCA 345).
- The Court will more readily give the primary caregiver exclusive occupation of the home, if it is in the best interests of the children.
- You may be able to remain in the family residence with the children to create a stable transition for the children.
If you leave the home, but your spouse remains in the home with the children, you should consider:
- It may be more difficult for you to exercise parenting time with the children if you are no longer living in the home. This can later impact your claim to equal parenting time, as the spouse living with the children is establishing a status quo situation.
- You may have to assist with the payments of the family residence in the interim and still pay for alternative accommodation.
- The spouse staying with the children in the family home may be able to remain in the family home until the children reach a certain age in order to enable stability for the children – hence your money may be tied up in the family residence until this future event or time occurs.
If you leave the home with the Children, you may to consider the following:
- If you are the primary caregiver of the Children you are entitled to child support and should look into recieving it right away. This may involve commencing a family action in the Court and then seeking an interim child support order.
- If your spouse makes significantly more than you, you should also consider seeking an order for interim spousal support as well.
- If you are not working at the time of your separation, you should try to have some arrangement for the child and spousal support as soon as possible, as this will be your financial lifeline until you can reorganize your life.
- If you feel threatened by your spouse, find a safe place to live with the Children and consider contacting a lawyer to assist you in getting child and spousal support.