As a mom in Alberta, and when it comes to the law and your rights or entitlements; and that of your children, ignorance is certainly not bliss. Rather, as Ralph B. Perry, once said:
Ignorance deprives people of freedom because they do not know what alternatives there are. It is impossible to choose to do what one has never heard of.
It is important to educate yourself on what your rights and entitlements are under family law, whether or not you decide to stay in a relationship that is ailing. Knowledge empowers you, and it allows you to make informed decisions.
A common question I get from mothers in Alberta is whether they can stay in the matrimonial home after they separate from their spouse. The good news is that there is a way! However, as with most things when it comes to the law, there is no guarantee of getting the outcomes that you would like. It would be up to you and your lawyer (or yourself if you do not have one) to put your case before the court and have a judge decide. Just because you are not on the title, mortgage or rental agreement, does not mean you cannot apply for exclusive possession of the matrimonial home.
To stay in the matrimonial home after separation, you would need what is called an Exclusive Possession Order. This allows you to live in the matrimonial home at the exclusion of your spouse. The courts can stipulate that one spouse be removed from the home and restricted or restrained from entering or coming near the home. Either spouse can apply for this remedy. Remember to include other important things such as retaining possession of certain household goods and vehicles you require for yourself and the children.
If there are safety concerns speak to a lawyer about how you can make such an application in the safest way possible and on an urgent basis.
This is a temporary remedy and does not mean that in the end, the home will not be sold, and the equity divided equally. The interest of both spouses in the ownership of the matrimonial home is not lost, as it remains intact during the time the Order is in place. Neither you nor your spouse may sell or burden the title of the home without written consent from the other spouse.
Registration of the Exclusive Possession of Home Order and/or Certificate of Lis Pendens against title is advisable.
The Courts Will Consider, the:
- Your children’s;
- Existing property or support Orders;
- Financial position of both spouses;
- Any written agreement between the parties;
- Availability alternative accommodation; and
- Domestic violence issues.
Every situation is different, and speaking to a lawyer about your own unique circumstances is highly recommended.
Lorraine Mlambo- Family & Surrogacy Lawyer, Edmonton Alberta (RLM Law)