How Your Date of Separation Is Set in Alberta and Why It Matters

People often ask for the exact day they "legally separated." In Alberta, the government says there is no such thing as a legal separation in Canada; you are separated when the relationship ends and you live apart. How this applies to you depends on your situation, so it is worth confirming with a lawyer.

Still, the date matters a great deal. It can decide when you can get a divorce, how long you have to start a property claim, and when an unmarried partnership is treated as over. This article explains how the date is set and what it controls.

This article covers the law of Alberta.

What fixes the date of separation

Under the Divorce Act, spouses are treated as living separate and apart for any period during which they lived apart and either of them intended to live separate and apart from the other. So the intention of one spouse counts toward the start date. Whether any particular document is needed in your situation depends on the facts, so it is worth confirming with a lawyer.

Because the test turns on intention rather than different addresses, spouses who still share a home can be treated as separated if at least one of them intends to live separately. Whether that is true in a given case is a question for the court on the facts. If this is your situation, our article on separating under the same roof goes into more detail.

What the date controls for divorce

A divorce on the ground of marriage breakdown is established when the spouses have lived separate and apart for at least one year immediately before the divorce proceeding is determined. Separation for one year is a ground for divorce in Alberta.

Where you live also matters. A court in a province can hear a divorce if either spouse has been habitually resident there for at least one year immediately before the proceeding starts.

The two-year property deadline

A property proceeding between spouses on separation may be commenced within 2 years after the date the spouses separated. Where there is a divorce, nullity, judicial separation or irreconcilability, the proceeding may instead be commenced no later than 2 years after the date of the decree nisi, declaration or judgment.

The separation date does not fix the value of the property. Unless a compliant written agreement says otherwise, the date used to value property to be distributed is the date of the trial. Because deadlines are strict, it is wise to get advice early rather than guess which date applies.

Adult interdependent partners and the 2020 cutoff

An adult interdependent relationship 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. Partners stop being adult interdependent partners when they have lived separate and apart for more than one year and one or both intend the relationship not to continue.

The property deadline works differently for them. An adult interdependent partner must start a property proceeding no later than 2 years after the date they first knew, or ought to have known, that they had become a former adult interdependent partner, not simply from the separation date.

The rules that give unmarried partners the same property division as married spouses only apply to couples who separate on or after January 1, 2020. If you separated earlier, a lawyer can confirm which rules apply.

When the clock keeps running

• Short reconciliation: the separation period is not interrupted if spouses resumed living together for periods totalling not more than 90 days with reconciliation as the main purpose.
• Longer or non-reconciliation cohabitation can break the period.
• Loss of capacity: the period is not interrupted if a spouse became unable to form or keep the intention to live separate and apart, and the court thinks the separation would likely have continued otherwise.
• Adult interdependent partners: a brief reconciliation of not more than 90 days with reconciliation as its primary purpose does not interrupt the separation period.

If you moved back in for a trial period, our article on moving back in after separation explains the issue further.

What to do next

Alberta does not require a separation agreement, but you can write one, and the government recommends speaking to a lawyer first. It is a contract between people who are separating, and common topics include parenting time, child support, spousal support and property division. Many people use it to record the date they agree they separated.

• Decide the date you believe the relationship ended and the date you began living apart.
• Note any periods you lived together again and why.
• Mark the one-year and two-year dates on a calendar.
• If you were unmarried, work out whether you separated before or after January 1, 2020.
• Speak to a lawyer before any deadline gets close.

Frequently asked questions