How to Apply for an Exclusive Possession Order in Alberta After Separation

Separation often leaves one question hanging: who stays in the family home? If you and your spouse or partner cannot agree, and one of you is tempted to simply push the other out, it helps to know that Alberta has a formal court process for this.

This article walks through that process for situations without family violence: who can apply, where and how, which forms may apply, what the court looks at and what an order can do. It is general information, not advice on your own situation.

This article covers the law of Alberta.

Who can apply, and when it fits

Exclusive possession orders are available to married couples and adult interdependent partners who cannot decide who will stay in the home or keep certain assets at the time of separation. Violence does not need to be a factor.

An adult interdependent relationship in Alberta includes living with another adult for 3 years, or for less than 3 years if you have signed an Adult Interdependent Partner Agreement or have a child together.

Alberta does not have a status called legal separation. Spouses or partners are separated when they end the relationship and live apart. An exclusive possession order is one of the court tools available instead, alongside separation agreements and other orders.

What the order can do

Under the Family Property Act, the Court may, on application, direct that a spouse or adult interdependent partner be given exclusive possession of the family home, that a spouse be evicted, or that a spouse be restrained from entering or attending at or near the home.

The order is temporary. It stays in place only until the couple or the court decides who stays in the home and how assets are divided. An order may also be registered with the Registrar of Land Titles.

Only a court order can remove a spouse. The Act gives no self-help right to push the other person out yourself.

Where to file and which forms

Applications are filed in the Court of King's Bench, and the application fee is $200. The forms depend on where your case stands:

In Greater Edmonton, Calgary, Red Deer or Grande Prairie, you may need to follow the Family Justice Strategy first, which aims to resolve matters before court. The Family resolution hub and mediation are also government options for resolving some family matters outside the courts.

What the court considers

In deciding whether to make an order, the court considers whether other accommodation is available within the means of both spouses, the needs of children living in the home and the parties' finances.

Alberta guidance adds that the decision depends on who would be most inconvenienced and on the children's best interests.

• Could each of you realistically afford somewhere else to live?
• Where will any children be living, and what do they need?
• What are each person's income and financial resources?
• Who would be more disrupted if they had to leave?

When an Emergency Protection Order is the better route, and next steps

If there is urgent family violence, an Emergency Protection Order can be applied for from the Court of Justice without notice to the other party. It can remove an offender from their home and prevent their return. A judge must review it within 9 working days and can replace it with a King's Bench protection order.

If you are not in that situation, a practical path looks like this:

• Write down your date of separation and your living arrangements.
• Gather information on your finances, housing options and the children's needs.
• Check whether a divorce or property action has already started, since that decides your forms.
• Find out whether the Family Justice Strategy applies in your area.
• Speak with a lawyer before filing, since a lawyer can confirm the forms and the evidence for your facts.

Frequently asked questions