What is Exclusive Occupancy in Family Law in BC?

In British Columbia, an exclusive occupancy order refers to a court order that grants one spouse the right to live in the family residence, to the exclusion of the other spouse. This is also known as a sole occupancy order. This type of order is governed by s.90(2)(a) of the Family Law Act. This blog discusses the test for making an exclusive occupancy order as well as the factors that the court would consider when making this order.

An exclusive occupancy can be ordered under the Family Law Act, at s.90(2)(a) which states that:

(2) The Supreme Court may make an order granting a spouse, for a specified period of time,

(a) exclusive occupation of a family residence, or

(b) possession or use of specified personal property stored at the family residence, including to the exclusion of the other spouse.

What is the Test for Making an Order for Exclusive Occupancy?

The legal test for exclusive occupancy was set out in Rinta v. Rinta, 1980 CanLII 526, including that shared use is a practical impossibility and the claimant is the preferred occupant on the balance of convenience.

An example of an application is Ferguson v. Ferguson, 2014 BCSC 216, the applicant, brought a short leave application seeking exclusive occupancy of the family home after a volatile incident.

The applicant deposed that on January 6, 2014, the respondent disclosed that he had been unfaithful to her while he was on a work-related trip. She says that she took his clothes out of the closest and told him to get out. She further said that the respondent grabbed her by the shoulders and she grabbed him back, but subsequently disengaged.

The respondent said that he was in the computer room of the family home when the applicant came in yelling and screaming at him. He said she began to slap and punch him in the face. He said that she told him to get out and began throwing his clothes on the floor. The respondent deposted that the applicant grabbed him by his bicep and told him to leave.

The incident was reported to the police but the applicant was not charged.

The applicant argued that the balance of convenience lies with her having exclusive occupancy of the family home. She argued that the respondent is a property manager and would have insight into the availability of rental properties. She argued that the respondent’s income is much higher than her own. Based on these facts, she argued that he would be the person best able to find and afford a new residence.

The judged accept the applicant’s version of this incident.

The court’s decision was that the parties clearly did not get along. They are volatile with one another. The court decided that it was a practical impossibility that they could live together in the same home. In addition, given the fact that the children were going to be primarily resident with the applicant, and the fact that the respondent has significantly more financial resources, the balance of convenience is that the applicant should have exclusive occupancy of the family home.

What Are the Factors That The Court Might Consider?

In the case of Armitage v. Armitage, 2022 BCSC 1108 (Master), this was an application by the claimant for exclusive occupancy of the parties’ vacation property on Gambier Island, BC.

The claimant said that he could not afford to purchase a home for himself, and that he did not want to rent elsewhere when the Gambier Cabin was available for his use. He said that being at the Gambier Cabin would be good for his mental health.

The claimant sought an exclusive occupancy order of the Gambier Cabin because he says the respondent was not respecting his privacy. The respondent asked to use the Gambier Cabin when the claimant was away which was denied through counsel. The claimant alleges that she showed up when he was absent, somehow entered the cabin, and used the cabin. The claimant alleges that the respondent has stayed in the Gambier Cabin, against his consent, three times since separation.

The claimant also alleges numerous other actions that he claims are family violence, such as using the boat to access the Gambier Cabin, stealing keys, refusing to allow his phone number to be released from the family plan with a cell phone service provider, opening his mail, and making derogatory remarks about him to others in texts, emails, and on social media.  

The claimant said that he lived in fear that she would show up at the Gambier Cabin.

During the relationship, the claimant was responsible for the maintenance of the Gambier Cabin and there is an order in place that he pay for the ongoing maintenance.

In addition, he argued that the respondent had effective exclusive occupancy of their West Vancouver home, that it was clearly impossible for the parties to reside in the same property, and that it would makes sense that he have exclusive use of the Gambier Cabin.

The various factors that have been considered by the courts in making that determination were set out in this case, including:

a)   Proximity of the residence to parties’ relatives;

b)   Hardship of leaving the home;

c)   Payment of interest towards the residence;

d)   Ability of the parties to afford alternate accommodations;

e)   Mental and physical health of the parties;

f)     Parties contributions toward the property;

g)   The financial and employment circumstances of the parties.

The respondent argued that the parties have two large homes. The respondent says she did not want to attend the Gambier Cabin while the claimant was there, but stated that he was frequently away for several days at a time.

The respondent said that historically the children have been able to holiday on Gambier Island and it would be in the children’s best interests to be able to use the Gambier Cabin with her when the claimant is away.

Further, she says that the Gambier Cabin is a 3,172 sq. ft. home on 11 acres. She stated that the upper floor is completely separate and the claimant could have the privacy he needs by locking his possessions in that area to allow her to use the rest of the property.

The court could not order exclusive occupancy of the vacation home as it did not fall under the definition of a family home (the ordinary residence of the spouses), but made conduct orders for a similar effect.

Will the Courts Order Exclusive Occupancy of a Vacation Home?

The court has jurisdiction to make a conduct order that effectively grants exclusive occupancy of a vacation home to a party. In the case above Armitage v. Armitage, 2022 BCSC 1108 (Master), the court found that they did not have the jurisdiction to grant exclusive occupancy of the Gambier Cabin to the claimant as it was not a family home as defined under the Family Law Act, but dealt with the issue by making conduct orders instead, including:

1)     the respondent is not to attend within 1 km of the Gambier Cabin property until agreement in writing or further order of the court; and

2)     the respondent is not to access or use the parties’ boat until agreement in writing or further order of the court.  

Conclusion

Exclusive occupancy orders in BC family law are an important tool for managing separation when living together is no longer viable. The courts carefully consider whether living together is a practical impossibility and who is better situated based on a balance of convenience.

While exclusive occupancy orders are limited to the family residence, where spouses ordinarily reside, the court can use conduct orders to manage the use of other properties such as vacation homes, when necessary to protect a party’s privacy or prevent further conflict.

FAQ: Exclusive Occupancy in BC Family Law

Q: Can I get exclusive occupancy if my ex and I both own the home?

Yes. Ownership is not the key issue—exclusive occupancy is about use and safety, not title.

Q: Does exclusive occupancy mean I get the house permanently?

No. It is usually for a specified period or on an interim basis.

Q: Can exclusive occupancy be ordered without violence?

Yes. Conflict, emotional tension, and other practical issues can justify such an order.

Q: Can I get exclusive occupancy of a vacation home?

Not under section 90 of the Family Law Act, but conduct orders may provide a similar result.

Q: Do children’s needs influence these decisions?

Absolutely. The court will consider residency of the children when making any occupancy order.