05 Dec

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Leaving The Family Residence After Separation - Stephen Durbin and Associates

Upon separation, if you depart from the family residence without your children and reside elsewhere, there can be repercussions to your parenting time. Whether married, or unmarried but cohabitating, this decision can substantially diminish the strength in your argument where you seek an order of the court for your children to live with you the majority of the time, or even equally. Similarly, if you are negotiating outside of court, you may lose substantial leverage.


People often think that in the course of separating from their spouse, common-law or otherwise, if they leave the family residence, they give up property rights. That is virtually never the case. Far more insidious are the consequences of leaving without taking the children with you.


While the law has evolved substantially in recent years, the status quo factor in determining the best interests of children with respect to where they should primarily reside (among other children’s issues), remains a guiding principle of judges. Simply put, the courts tend to favour non-intervention in children’s living and visitation arrangements where things appear to be in place and working for a while: the “status quo”.


If a parent leaves the home without the children and remains away for some period of time, they acquiesce to a change in the status quo (from both parents equally parenting the children) to the parent remaining in the family home becoming by default, the de facto “primary parent”.


As a result, it is advisable that you not leave the family home until such matters have been determined by court order, or by written agreement with the other parent (of proper form, with independent legal advice), unless you take the children with you.


If you wish to leave the family home and take the children with you, you must be very cautious. To ensure no misstep, your counsel will write the opposing party or their legal counsel specifying what has happened, where the children are, and proposing visitation for the other parent (or at least expressing willingness to discuss a schedule and facilitating such visits). Taking this option means that the departing parent has the means to provide another place to live, or family who has room to house them on at least a temporary basis.


Should you be unable or otherwise unwilling to choose that option, you should almost always be advised not to depart from the home—except in cases of threat of harm to you. The unfortunate consequence of remaining in the home is that you are then forced to reside with someone with whom you have separated, and may be very much at odds with, until such time as the matter has been finally determined. This is a very difficult and trying situation for most people.


An alternative to residing together is what is often referred to as a “nesting” arrangement or agreement. Here, the parties shuffle in and out of the home so that only one is in the home with the children at a time. When outside of their parenting time and the home, they reside with family or friends. This can be easier on the parties financially and easier on the children psychologically, but it has its pitfalls. Walking into whatever your estranged spouse may have left behind or changed can easily cause more strife–even moreso for the children, and this is never a good long-term solution. Only in the rarest of circumstances do I recommend this as a solution, albeit a temporary one.


The abiding mantra though, will always be the same: Avoid serious and at times irreversible missteps in your separation. Retain a good family lawyer early on in the process.