If you ever questioned what to do if you are living with your abuser, the law has answers and our family lawyers can help. One option is to pursue an occupation order to ensure you are safe in your own home.

These orders are carefully considered by the courts, but our team and Marsans Gitlin Baker can assist and advise you through this difficult time.
 

What is an occupation order?

An occupation order determines who lives in the shared home and if anyone is to be excluded from it. It can also be used to divide the space within the shared home. 

Occupation orders are commonly filed with a non-molestation order. This means that if an applicant lives with someone who is abusing them, they ask the court to give them sole access or provide instruction on how the home is to be shared.

Who can apply for an occupation order?

• Spouses
• Civil Partners
• Cohabitants
• Individuals with legal entitlement to occupy the property

How do you apply for an occupation order?

To apply for an occupation order, you need to fill out a court form and submit a witness statement. The witness statement should explain why you are seeking an occupation order. You may also include other evidence such as police reports, medical reports, social service reports, photographs on injuries, and photographs of property damage.

The Occupation Order Hearing

Without Notice: If the application is made without notice to the respondent, the judge will have the opportunity to make an interim order at the initial hearing and issue a return date to give the respondent an opportunity to be heard. The return date is when the judge will decide whether to grant a final order.

With Notice: The respondent must be notified two days before the hearing. Both parties will have the opportunity to be heard at the hearing and will determine if an order is appropriate. 

How does the court decide whether an occupation order is appropriate?

The main test the court applies is ‘the balance of harm test.’ Here, the court considers the potential harm from granting or denying the order. The court will compare the harm the applicant will suffer if the order is not granted with the harm the respondent will suffer if it is granted. 

The impact, health, and well-being of any children is another high priority of the court when weighing whether an occupation order is appropriate.

Other considerations include each party’s housing needs and resources, each party’s finances, history of domestic abuse, the health and safety of the parties and any children, and the conduct of each party. 

Does an occupation determine who owns the home?

No, the financial interests in the home remain. 

Who pays the home bills, rent, or mortgage if an occupation order is granted?

The court may order that the excluded person still pay bills and fulfill repair and maintenance obligations. This is dependent on the court’s judgment and the individual circumstances.

How long does an occupation order last?

The orders are typically granted for six months, but you can apply for a renewal or extension if needed. 

Can you challenge an occupation order?

Yes, even if an interim order has been granted, the respondent will always have an opportunity to be heard in court before a final order. The respondent will need to show that the order is unnecessary or unfair – that the balance of harm test does not support an occupation order. 

Can you appeal an occupation order?

An appeal must be made promptly, usually within 21 days of the decision. There are different grounds for appeal including legal or procedural errors, overlooking relevant evidence, and that the decision was not reasonable.