After a separation the house can be the first practical problem, ahead of the divorce itself: who stays, who pays the mortgage or rent in the meantime, and whether it can be sold. The Family Law Act gives separate answers to each, and the orders that settle them are made by the Supreme Court.
| The question | What the law provides | FLA or statute |
|---|
| Who owns it now? | From the date of separation each spouse holds a half share of family property, the home included, regardless of whose name is registered (agreements, orders and excluded property aside) | s.81, ss.84 and 85 |
| Can one of us stay and the other leave? | A Supreme Court order can let one spouse live there alone for a fixed time, for an owned or a rented home | s.90 |
| Can the other spouse sell or mortgage it before we settle? | Once a property claim is made, the court must bar a disposal unless the owner proves the claim will not suffer, and it can add protective orders | s.91 |
| Can I protect it on title? | A spouse may register an entry against a homestead registered in the other spouse’s name; after that, a sale or other disposition without the protected spouse’s written consent is void | Land (Spouse Protection) Act ss.2, 3 |
| How is it divided in the end? | Either the spouses agree, or the court orders a transfer with compensation, or a sale with the proceeds divided | s.97 |
| What if there is violence? | A protection order can keep a family member away from the home even if they own it | s.183 |
Staying in the home: exclusive occupation
“Family residence” means a home owned or leased by one or both spouses that was their ordinary residence, so renters can apply as well as owners. It confers no ownership, and the spouse who stays may not make material changes to the home. The court can also postpone a sale while the order lasts.
Exclusive occupation is a Supreme Court order; the Provincial Court has no power to divide or allocate property other than a companion animal. Who covers the mortgage or rent, taxes and utilities in the meantime is decided with support or written into the order.
Stopping a sale or new mortgage
If you think the other spouse may sell, mortgage or strip value from the home before the property claim is decided, section 91 is the tool. When you apply as a spouse with a property claim, section 91(1) obliges the court to forbid disposal of the property in issue, and the burden falls on the owner spouse to show that your claim would be unaffected. Section 91(2) lets the court go further, with orders to preserve the property, to bar a transfer or conversion, or to vest property. Whether the application can be made without notice to the other spouse is for the court under its rules, and it depends on the facts.
The Land (Spouse Protection) Act works differently. It is not a court order but an entry at the Land Title Office against land registered in your spouse’s name, with a dwelling the two of you occupied as your home now or within the past year. The applicant spouse must live in BC and be 19 or older. After the entry, a sale or mortgage without your written consent is void; the court can dispense with consent in limited cases. The Act stops applying once you have separated and resolved the home by agreement or order. It gives no right to live in the home, and it does not apply to a rental.
Selling, buying out or transferring
At the end, the court can declare who owns the home, transfer title to one spouse, order compensation, or order a sale and division of the proceeds (section 97). If the home was one spouse’s before the couple got together, its value at that date belongs to that spouse alone; the increase since is family property (sections 84 and 85). The spouse who says part of the value is excluded has to prove it. Section 95 allows the court to depart from equal shares when halving would be significantly unfair. See our property division page.
A property claim has a two-year limit, counted from the divorce order for married couples and from separation for unmarried ones (section 198(2)). The period is suspended while you are in a dispute resolution process with a mediator, counsellor or lawyers, but not during private negotiation (section 198(5)).
Practical steps in the first weeks
- Get a current title search for the home, and the latest assessment and mortgage statement.
- Keep paying the mortgage or rent and the insurance; a lapse can harm you both, and payments made can be accounted for later.
- Do not change the locks on a shared home or remove the other spouse’s belongings without an agreement or order.
- If you fear a sale or a new mortgage, ask a lawyer promptly about a section 91 order or a Land (Spouse Protection) Act entry.
- Keep records of what you owned at the start of the relationship if you may claim part of the home as excluded.
Where a Sicamous family case is heard
Parenting and support cases in the Provincial Court go to the registry nearest the child’s usual home, or, if no child is involved, nearest the home of whoever files first (Provincial Court Family Rule 7). For a family in Sicamous that may well be Salmon Arm (Vernon is about 74 km away by road), but confirm with the registry. Salmon Arm is an Early Resolution Registry, which means a Notice to Resolve, a needs assessment, parenting education and a dispute resolution session come before any application, unless an exemption applies. The Vernon Family Justice Centre provides those services, by phone and video for Sicamous families or in person in Vernon. Protection orders can be sought without completing the steps first.
Children, support and divorce
For a divorce, one of you must have been habitually resident in BC for the year before filing, and the ground is ordinarily shown by a year apart.
Sicamous family home questions
My spouse’s name is the only one on title. Do I have any claim?
If the home is family property, yes: title does not decide it. Excluded property and any agreement can change the answer.
Can I make my spouse move out?
Not by yourself. A judge of the Supreme Court can order that you live in the home alone for a time. In an emergency, call 911; a protection order can also keep someone away from the home.
We rent. Does any of this apply?
Exclusive occupation can apply to a leased home. A Land (Spouse Protection) Act entry does not, because there is no registered interest.
Will I have to travel to the coast for meetings?
No. Meetings run by phone, email or video; court attendances in Salmon Arm are handled by your lawyer.
