Separation: Deciding Who Will Move Out
Script 116 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
This script discusses moving out when you separate, including:
who should move out;
whether you can lock your spouse out of the home;
getting a court order to make your spouse move out; and,
what to do if your spouse harasses you after you have separated.
Should someone move out?
Many couples stay together after they separate, usually because it’s cheaper to live in one place with one set of household bills than in two places with two sets of bills. This isn’t possible for everyone, particularly if there is a high level of conflict in your relationship after separation and especially if there is a high level of conflict and you have children.
Who should move out?
If you have children, and you and your spouse can talk about this issue, several things will influence your decision about who will stay in the house and who will move out:
Where are the kids likely to stay after the separation, and who will be mostly responsible for looking after them?
Where do the children go to school or daycare? Where are their extracurricular activities?
Can you afford to get a second home big enough for the children?
Will either one of you be keeping the home? Can either of you afford to keep the home?
It often makes sense that the person who will be caring for the children or keeping the home should stay in the house, and that the other person should leave.
When should you move out?
There’s no rule that says when you can and can’t move out, or that you must tell your spouse ahead of time that you’re moving out. If it’s a very emotional separation or there has been violence between you and your spouse, you might want to move out when your spouse isn’t home.
Can you move back in after you’ve moved out?
If you are both owners of the home or are both listed on the lease or rental agreement, you can move back in if you want. It’s your place too. However, you should let your spouse know about your plans first.
Do you risk losing your share of the property if you leave?
You may be worried that if you leave, this will affect who gets what. Don’t worry. If you have a right to a share in the property, you won’t lose it by moving out. However, if you move out of the home while your spouse remains, it might be difficult later to convince the court that you should be allowed to return.
If you are a married or an unmarried spouse, haven’t started a court case yet, and the property is only in your spouse’s name, considering filing a Land (Spouse Protection) Act entry against the home to prevent your spouse from selling the property without notice to you. If a court case has started, married and unmarried spouses can also file a certificate of pending litigation against the home under the Land Title Act to protect your interest in the property from creditors.
Can you take any of the household belongings?
You have the right to take a reasonable share of the household belongings. If you’re the one who is moving out and you’re taking the children with you, you’ll need to consider their needs when deciding what to take and what to leave behind. But don’t strip the place bare or take more than a fair share, and don’t take things out of spite. Later on, you can always apply to the court if there are more things that you want from the home and you and your spouse can’t agree on whether you can have them.
What to take with you
If you plan to leave your relationship and you want your children to live with you, you need to take the children with you when you move out. You should also take important documents and information, such as:
Your marriage certificate, if you’re married
Financial information, such as your tax returns for at least three years, statements from bank accounts, investment accounts, RRSP accounts and debt accounts, and copies of recent paystubs
Your CareCard and other health and dental insurance cards
Your SIN card, your passport, and any immigration papers you may have
You children’s birth certificates, passports and CareCards
Medications and prescriptions
Your children’s clothing, furniture and personal belongings
Copies of your spouse’s financial information, such as paystubs, tax returns, company records and ledgers, bank accounts, investment accounts, and RRSP accounts
A record of your spouse’s Social Insurance Number, CareCard number and date of birth
Can you take money from a joint account?
If you have a joint bank account with your spouse or partner, you can take half the money in the account. Don’t take any more than half, and consider not taking anything if you have an income and your spouse doesn’t.
What about debts?
If you have any joint credit cards with your spouse, consider calling the bank and tell them that you and your spouse are separating and cancel your card for the joint account. You don’t want the bank to hold you responsible for new charges on the account if you can avoid it.
If you have a line of credit or an open mortgage with your spouse and you’re worried that your spouse might withdraw more money, consider calling the bank and asking them to: freeze the line of credit or mortgage; reduce the credit limit to the present balance; convert the account to deposit-only; or, require two signatures to withdraw more money. You should talk to a lawyer before doing anything that might look unfair.
What if you want to stay in the house?
If you have children, it might be in the children’s best interests to stay in the home. In general, the more stability children have, the easier it is for them when their parents separate. But if you want to stay in the house with the kids, your spouse refuses to leave and you simply cannot continue to live under the same roof, you’ll have to get legal advice to find out if you can make your spouse move out.
In many communities in BC, there is a government-sponsored Parenting After Separation (PAS) course that talks about children and separation. This is a free program and both you and your spouse should consider going (you won’t be required to go together). The program is available in many languages and is also available online at http://parenting.familieschange.ca. For more information, call Service BC at 604.660.2421 in the lower mainland, 250.387.6121 in Greater Victoria or toll-free 1.800.663.7867 elsewhere in BC, and ask to speak with the Family Justice Centre nearest you, or click on www.ag.gov.bc.ca/family-justice/help/pas/.
Can you get a court order to make your spouse leave?
The Family Law Act allows the court to make an order giving one spouse “exclusive occupancy” of the family home; this rule applies to property that is owned and property that is rented. To get an order for exclusive occupancy, you must show the judge two things:
that it’s practically impossible for the two of you to remain together in the same home, and
that it’s more convenient for you to live there than for your spouse.
Can you lock your spouse out?
Usually each spouse has as much legal right to be in the home as the other, until a court decides otherwise or one of you agrees to move out. Simply not wanting to live with your spouse isn’t enough for you to lock your spouse out of his or her home. However if you fear that there might be violence, it may be reasonable to lock your spouse out until the police can be contacted or a restraining order obtained. But if the possibility of violence isn’t an issue, there’s a risk that locking out your spouse will backfire and allow your spouse to complain that he or she has been treated harshly and unfairly. If possible, obtain the advice of a lawyer before locking out your spouse.
Who should pay the household bills?
If you want your spouse to move out, or if you’re asking for an order for exclusive occupancy of the home, you should be prepared to pay the household bills, such as the rent or mortgage, utilities, taxes and the like. You can apply for an order for support from your spouse to help you with these bills. But your spouse may be able to ask that the house be sold and the money from the sale kept in trust until your case is resolved. These issues are complex, and you should speak to a lawyer before deciding what to do.
What can you do if your spouse harasses you?
If your spouse harasses you after you have separated, you have two different options:
You can apply for a protection order. You can ask the court for a protection order to prevent your spouse from calling you or coming near the home. When you get the protection order, keep a copy of the order with you at all times so if you have to call the police you can show them the order.
You can ask for a peace bond. If you phone the police and you can show them that you’re afraid for your safety because, for example, your spouse has been violent toward you or threatened to be violent toward you, crown counsel, the lawyer for the government who is responsible for prosecuting criminal offences, can ask a criminal court judge to issue a peace bond against your spouse under section 810 of the Criminal Code. This is a promise to the court to keep the peace and be of good behavior and to stay away from you. If your spouse continues to threaten or harass you, he or she might have to go back to criminal court and could even go to jail. You don’t need a lawyer to get a peace bond but you do have to call the police.
For more information on restraining orders and peace bonds, refer to:
script 155 on “Family Violence”
script 217 on “Applying for a Peace Bond and Filing Assault Charges”
Should you get a separation agreement?
The best solution when a couple separates is to get an agreement, as long as the couple can get along well enough to negotiate a settlement. A separation agreement puts in writing who will live in the house. It can also sort out other issues, such as if and when the house will be sold, how the children will be cared for, and whether support will be paid. Make sure that you get a lawyer’s advice before you sign a separation agreement, even one negotiated by a mediator, to get proper information about what the agreement means and how it affects your legal rights and obligations.
For more information, refer to:
script 115 on “Separation and Separation Agreements”
script 124 on “Dividing Property and Debts”
Your first decision when you separate will be whether you need to live in separate homes, and if so whether you will move out yourself or try to have your spouse move out. If you want to stay, but your spouse refuses to leave, you’ll have to go to court for an order giving you the sole right to live in the home if you can’t continue to live under the same roof. If you can agree on what will happen after you’ve separated, you can make a separation agreement.
[updated March 2013]
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