Can I get my Spouse out of my House?

Parties often believe that the process of spouses separating must be physical – one spouse moves out of the residence and the separation begins. However, starting a separation can be as simple as forming an intention to separate. Separated couples often live in the same house, occupying separate bedrooms or separate floors of the home while creating a plan to occupy separate residences.

COVID-19 has created a whole new reality for separating spouses. Spouses who thought of starting the process of physically separating may suddenly be found living in the same residence as their ex-spouse, with no end in sight. Separated couples who ordinarily would have structured their schedule to avoid their ex-partner as much as possible are suddenly stuck in the same home nearly 24/7 due to social distancing measures.

Physical separation requires resources – funds to pay for a second residence, a friend or family member with extra space, or furnishings. Due to layoffs, salary decreases, and cautions from heath authorities to maintain social distance, many of these resources are less and less available.

Ordinarily, couples who cannot agree on how to physically separate can pursue an application called Exclusive Possession. This is an application to the Court of Queen’s Bench. One party applies to remain in a residence, removing their spouse or partner from the home. The spouse or partner can be evicted from the residence, and/or restrained from attending at the residence. When considering an application for Exclusive Possession, the Court will look at factors such as:

–    whether the spouse or partner has alternate accommodations available;

–    the needs of any children that live in the home; and

–    each party’s financial position.

Due to concerns with COVID-19, the Court of Queen’s Bench of Alberta has suspended all hearings that are not considered emergency matters until May 1, 2020 at the earliest. Though hearings can be requested on an urgent basis, it is in the Court’s discretion to determine if a matter is urgent. An application for Exclusive Possession is not likely not an available option until the Court resumes normal operations.

Without the availability of Court assistance, parties must be willing to be creative, and work together without the Court’s assistance. Lawyers can assist separating spouses with negotiating a resolution or ground rules to assist with living together while separated in the age of social distancing. The lawyers at Birdsell Grant are available to assist couples with navigating the process of separating while not being able to physically separate.

Options such as the Collaborative Process are available with the lawyers at Birdsell Grant LLP.  The Collaborative Process is an out of Court process that allows parties to create a framework for each step in their separation, without relying on Court intervention. For more information, call us or email us.

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