Exclusive possession of a matrimonial home in Nova Scotia is an interim order under the Matrimonial Property Act. It allows one spouse to live in the family home to the exclusion of the other, regardless of who owns the title. Judges prioritize the "best interests of the children" and the financial ability of each spouse to find alternative housing.
When a marriage breaks down in Halifax or Dartmouth, one of the most immediate problems is who will live in the family home. If living together is impossible due to conflict or safety concerns, you may need to apply for an "Exclusive Possession" order. This is a powerful legal tool that removes a spouse from their residence before the final divorce or asset division is settled. 📍
In Nova Scotia, this process is governed by the Matrimonial Property Act. It is designed to ensure that the "family unit"—especially the children—has a stable place to stay while the lawyers work on spousal support and property division. Most applicants in this province find that these orders are "interim," meaning they are temporary until a final agreement is reached. 🇨🇦
Criteria for Exclusive Possession in Nova Scotia
The Supreme Court (Family Division) does not grant these orders lightly. A judge will not kick someone out of their home just because the other spouse is "uncomfortable." Generally, the court looks at:
- Best Interests of the Children: Is it better for the kids to stay in their current school district and home? This is often the deciding factor.
- Financial Hardship: Can one spouse afford a rental in Halifax while the other cannot? If one spouse has significantly higher income, they may be expected to move.
- Conduct and Safety: If there is family violence or extreme psychological harm, the court will move quickly to protect the vulnerable party.
- Availability of Other Housing: Are there other suitable places for the displaced spouse to live?
The Legal Process in the Halifax Regional Municipality
To get an order, you must move through the Supreme Court (Family Division).
Step 1: Filing a Notice of Motion
Your lawyer will file a Notice of Motion seeking "interim exclusive possession." This must be accompanied by a detailed Affidavit. The Affidavit is your "testimony in writing," where you explain to the judge exactly why it is necessary for the other spouse to leave. 📝
Step 2: Serving the Other Spouse
The papers must be personally served on your spouse. They have the right to file their own "Responding Affidavit" to give their version of the story. In Halifax, this stage can be very tense, and having a lawyer handle the communication is highly recommended.
Step 3: The Court Hearing
A judge will hear arguments from both sides. They will weigh the factors in the Matrimonial Property Act. If the order is granted, the other spouse will be given a specific date and time by which they must vacate the premises.
Costs and Timelines
The cost of obtaining an exclusive possession order involves significant legal labour, as the Affidavits must be drafted with extreme care.
| Phase | Estimated Time | Estimated Cost (CAD) |
|---|---|---|
| Drafting and Filing | 1 – 2 weeks | $2,000 – $4,000 |
| Court Appearance | 1 day | $1,500 – $3,000 |
| Total Process | 4 – 8 weeks | $3,500 – $7,000+ |
Note: If there is an immediate threat of violence, you may be able to obtain an Emergency Protection Order (EPO) within 24 hours, which provides temporary possession of the home without a full hearing.
What about Common-Law Couples?
In Nova Scotia, the Matrimonial Property Act generally does not apply to common-law couples unless they have registered as a "Domestic Partnership" with the province. 🚫 For unregistered common-law couples, getting a spouse to leave a home they own (or joint-own) is much more legally complex and often involves "Trust" law rather than family law statutes. 💡
Frequently Asked Questions (FAQ)
Does exclusive possession mean I own the house?
No. Exclusive possession is about who lives in the house. It does not change who is on the deed or how much money each person gets when the house is eventually sold or transferred.
Can I change the locks?
You should never change the locks without a court order specifically granting you exclusive possession. Doing so "voluntarily" can be seen as an illegal eviction and may hurt your case in front of a judge.
Who pays the mortgage?
The court order will usually specify who is responsible for the mortgage, taxes, and insurance. Often, the person staying in the home pays these, but the judge can order the other spouse to pay as part of an interim support arrangement.
How long does the order last?
Most interim orders last until a final trial or a final "Separation Agreement" is signed. This can range from a few months to over a year.
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