Can I force my abusive husband to leave the family home?

This information is not intended to serve as or replace legal advice. Please contact a feminist rape crisis centre, transition house or women's centre to get further information and referrals for legal advice for your specific situation.

Exclusive Occupancy of the Family Home

The Family Relations Act does not specify what a judge should consider in making a decision about exclusive occupancy. However, case law has established that the spouse who wants such an order must show that sharing the home with the other spouse is a practical impossibility. Violent conduct by the other spouse may show the required practical impossibility....

Where there is a risk of future violence, [you] may ask for an order under s. 126 prohibiting contact, and an exclusive occupancy order under s. 124 at the same time, for a greater measure of protection. The combined orders are meant to ensure that the family home is safer

You can apply for "restraining orders; either to prevent harassment (s. 37), or to prohibit contact (s. 38, s. 126). Restraining orders under ss. 37 and 38 can be made with or without notice to the other person. Without notice orders can be granted in cases of urgency, including where the location of the other person is unknown or if the fact of giving notice itself may lead to violence.

Orders made under ss. 37 and 38 authorize the police to arrest the other person if he or she violates the terms of the restraining order. Both ss. 37 and 38 allow a judge to require the person named in the order to put up money that will be forfeited if the person fails to obey the order, or to require the person to report to a designated person for a period of time set by the judge. In addition, under s. 38, a judge may require the person to deposit documents, such as a passport, with a designated person, or transfer specific property to a trustee on specified terms and conditions. An order to transfer property may only be made by a Supreme Court judge.

Section 126 allows a judge to make an order prohibiting one person from entering a place occupied by another person or a child in that person’s custody. This is similar to one of the orders available under s. 38, but s. 126 applies only to separated spouses, regardless of whether or not they have children.

At the end of the day the order is only as good as your husband obeys it and the indvidual police officer who enforces it. You may find police are reluctant to take action against your ex partner. You may have to advocate for yourself. If you have trouble with this you can call us to be with you and support you. If your husband continues to harrass you and threaten you there are shelters for you and your family to go to. Please refer to the section of the website marked - escape an abusive man or help a friend.  

This information was adapted from Chapter 9 of Ministry of Attorney General  Justice Services Branch  Civil and Family Law Policy Office  Family Relations Act Review Discussion Paper  Prepared by the Civil and Family Law Policy Office April 2007

Please call Vancouver Rape Relief and Women's Shelter to talk more about your specific case. We can schedule an appointment with our free legal clinic. (604) 872-8212