Who Can Stay in the Family Home Right After Separation in Nova Scotia

Right after a separation, the practical question is often who sleeps where tonight. People worry that if they leave the family home, they will lose their place in it, or that if they stay, they will be forced out.

This article explains the factors that tend to matter, what protections exist if you are unsafe, and where a court gets involved. The rules on the home itself depend on the facts, so a lawyer should confirm how they apply to you.

This article covers the law of Nova Scotia.

Ownership is not the whole story

Many people assume that the spouse whose name is on the deed or lease has the final say. Others assume both spouses have an equal right to stay no matter whose name appears. Neither assumption is safe to rely on without advice.

How this applies depends on your situation, including whether you own or rent and how the home is held, so it is worth confirming with a lawyer. Get that advice before you move out or ask your spouse to leave, especially if there is a dispute.

How children affect the decision

When children are involved, where they will live and who will care for them is usually part of the same conversation. If you are applying for a divorce, the Divorce Act says that in making parenting or contact orders the court considers only the best interests of the child, giving primary consideration to the child's physical, emotional and psychological safety, security and well-being. The Supreme Court (Family Division) hears parenting arrangements, including decision-making responsibility and parenting time.

Under the Divorce Act, the factors the court weighs include the child's needs and stability, the history of care, each spouse's plans for care, and family violence and its impact. A child's day-to-day routine is worth thinking about before changes are made.

Under the Divorce Act, the court also gives effect to the principle that a child should have as much time with each spouse as is consistent with the child's best interests. If you have not applied for a divorce, the rules that apply to your parenting arrangements may differ, so it is worth confirming with a lawyer. Parenting arrangements and the question of who stays in the house are connected, but they are not the same question.

If your safety is at risk

If you are afraid of your spouse, safety comes first. Emergency protection orders under the Domestic Violence Intervention Act must be applied for by telephone.

• A victim may apply between 9:00 am and 9:00 pm.
• Designated persons, such as peace officers, Victim Services staff and designated transition house staff, may apply at any time.
• The justice records the call and completes Form A.
• After an order is made, a judge must review it within 7 business days after receiving the order and supporting documentation.
• Notice of a hearing before a judge is given to the victim in Form F.

What an order can include, and how long it lasts, should be confirmed with a lawyer, a Victim Services worker or a transition house, since the details can change.

When the court gets involved

If you and your spouse cannot agree, a court may be asked to decide. Divorce and parenting matters are heard in the Supreme Court of Nova Scotia (Family Division), which also hears child support and the division of matrimonial assets and debts.

Whether a court can order that one spouse alone occupy the home, and on what conditions, depends on the legislation and your facts. A lawyer can confirm the test and whether it fits your situation.

Not every dispute needs a judge. Court-based options include conciliation, mediation, and voluntary judge-led settlement conferences. If your application involves children, the Parent Information Program is mandatory when it is filed in the Family Division.

What to do next

• If you are unsafe, contact police or a transition house and ask about an emergency protection order.
• Do not assume that leaving, or staying, is risk free. Get advice first if you can.
• Gather the deed, lease, mortgage statements and utility bills.
• Write down who has been caring for the children and the usual routine.
• Try to agree on a temporary arrangement in writing, and have a lawyer review it.
• Ask about legal aid if cost is a concern. Family matters under the Divorce Act and the Parenting and Support Act are covered, subject to eligibility.

Frequently asked questions